Oregon Natural Resources Council v. Allen

• Decision Date: 16 February 2007
• Docket Number: No. 05-35830.,05-35830.
• Citation: 476 F.3d 1031
• Parties: OREGON NATURAL RESOURCES COUNCIL; Klamath Siskiyou Wildlands Center; Cascadia Wildlands Project; Siskiyou Regional Education Project; Friends of the Living Oregon Waters; National Center for Conservation Science and Policy, Plaintiffs-Appellants, v. David B. ALLEN, in his official capacity as Regional Director for the United States Fish and Wildlife Service's Pacific Region; U.S. Fish & Wildlife Service, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

476 F.3d 1031

OREGON NATURAL RESOURCES COUNCIL; Klamath Siskiyou Wildlands Center; Cascadia Wildlands Project; Siskiyou Regional Education Project; Friends of the Living Oregon Waters; National Center for Conservation Science and Policy, Plaintiffs-Appellants, v. David B. ALLEN, in his official capacity as Regional Director for the United States Fish and Wildlife Service's Pacific Region; U.S. Fish & Wildlife Service, Defendants-Appellees.

No. 05-35830.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 28, 2006.

Filed February 16, 2007.

Kristen L. Boyles, Earthjustice, Seattle, WA, Stephanie M. Parents, Pacific Enviornmental Advocacy Center, Portland, OR, for the plaintiffs-appellants.

R. Justin Smith, U.S. Department of Justice, Environment and Natural Resources Division, Washington, D.C., for the defendants-appellees.

Mark C. Rutzick, Portland, OR, for amicus curiae American Forest Resource Council.

Appeal from the United States District Court for the District of Oregon; Owen M. Panner, District Judge, Presiding. D.C. No. CV 03-0888 PA.

Before: GOODWIN, TASHIMA, and GRABER, Circuit Judges.

TASHIMA, Circuit Judge:

As a result of this court's opinion in Gifford Pinchot Task Force v. United States Fish & Wildlife Service, 378 F.3d 1059 (9th Cir.2004), the Fish and Wildlife Service ("FWS") voluntarily reinitiated consultation with two federal agencies regarding the impact of a portion of a proposed timber harvest on the endangered northern spotted owl. The FWS accordingly withdrew its favorable Biological Opinion ("BiOp" or "2001 BiOp") regarding that portion of the timber harvest, but did not withdraw the accompanying Incidental Take Statement, which would authorize the taking of "all" northern spotted owls associated with the full timber harvest. The Oregon Natural Resources Council and several other conservation groups (collectively, "ONRC") challenge the validity of this Incidental Take Statement. We have jurisdiction under 28 U.S.C. § 1291. We hold that the Take Statement is invalid because: (1) the withdrawal of a portion of the BiOp leaves the Incidental Take Statement without an underlying factual predicate; (2) the Incidental Take Statement presents a non-numerical measure of take without explaining why no number was provided; and (3) the Incidental Take Statement sets a measure of take that does not allow for reinitiation of consultation.

I. BACKGROUND

The Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531-1544, evidences a congressional intent to afford endangered species the highest of priorities. TVA v. Hill, 437 U.S. 153, 194, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978). "The plain intent of Congress in enacting this statute was to halt and reverse the trend toward species extinction, whatever the cost." Id. at 184, 98 S.Ct. 2279. To accomplish this ambitious goal, the ESA sets forth a comprehensive program to limit harm to endangered species within the United States. Section 9 of the ESA establishes a blanket prohibition on the taking¹ of any member of a listed endangered species. 16 U.S.C. § 1538(a)(1)(B). Section 7 affirmatively commands each federal agency to "insure that any action authorized, funded, or carried out" by the agency "is not likely to jeopardize the continued existence of any endangered species . . . or result in the destruction or adverse modification of habitat of such species." 16 U.S.C. § 1536(a)(2). However, § 7 carves out limited exceptions for federal agencies and certain statutorily-defined "applicants," allowing those contemplating action that may harm endangered species to obtain a limited exemption from penalties under certain circumstances.² 16 U.S.C. § 1536(a)-(c), (o); 50 C.F.R. § 402.02.

Under § 7, if any listed (or proposed listed) species may be present in the area of the proposed action, the federal agency (the "action agency") must conduct a biological assessment in order to determine the likely effect of its proposed action on the species. 16 U.S.C. § 1536(c)(1); see also 50 C.F.R. § 402.02. If the action agency concludes that its proposed action may affect listed species or critical habitat, it must initiate consultation with the FWS or the National Marine Fisheries Service. See 50 C.F.R. § 402.14.

In 2001, the Bureau of Land Management and the Forest Service ("agencies") desired to conduct approximately 75 timber sales on 64,006 acres of federally-managed land in the Pacific northwest, primarily within the Rouge River Basin in Oregon. These forests also house the northern spotted owl, strix occidentalis caurina, a listed threatened species. See 50 C.F.R. § 17.11(h). The agencies conducted a biological assessment of the proposed sales and concluded that the sales may affect the northern spotted owl, as well as three other listed species. The agencies initiated formal consultation with the FWS.

During the consultation process, the FWS assessed the proposed action for its potential to harm the spotted owl and other endangered species and their critical habitat. See 50 C.F.R. § 402.14(g). The FWS summarized its findings in a BiOp, issued in October 2001. See 50 C.F.R. § 402.14(g)-(h). The BiOp found that the proposed timber harvest would remove 22,227 acres of forest designated as spotted owl suitable habitat (i.e., habitat suitable for nesting, roosting and/or foraging). The timber harvest would impact 10,443 acres of spotted owl critical habitat,³ removing or downgrading 5,383 acres of nesting, roosting, and foraging critical habitat, degrading 2,168 acres of nesting, roosting, and foraging critical habitat, removing 563 acres of dispersal⁴ critical habitat and degrading 2,329 acres of dispersal critical habitat. Nevertheless, the BiOp concluded, the anticipated harvest "[was] not likely to jeopardize the existence of the spotted owl . . . and [was] not likely to destroy or adversely modify designated critical habitat for the spotted owl."

When the FWS concludes that an action will not jeopardize the existence of a listed species or adversely modify its habitat, but the project is likely to result in incidental takings of listed species, the FWS must provide a written statement with the BiOp that authorizes such takings. 16 U.S.C. § 1536(b)(4), (o); Ariz. Cattle Growers' Ass'n v. U.S. Fish & Wildlife, 273 F.3d 1229, 1233 (9th Cir.2001). The Incidental Take Statement must: (1) specify the impact of the incidental taking on the species; (2) specify the "reasonable and prudent measures" that the FWS considers necessary or appropriate to minimize such impact; (3) set forth "terms and conditions" with which the action agency must comply to implement the reasonable and prudent measures (including, but not limited to, reporting requirements); and (4) specify the procedures to be used to handle or dispose of any animals actually taken. 16 U.S.C. § 1536(b)(4); 50 C.F.R. § 402.14(i). As long as any takings comply with the terms and conditions of the Incidental Take Statement, the action agency is exempt from penalties for such takings. 16 U.S.C. § 1536(o)(2). Thus, a BiOp with a no-jeopardy finding effectively green-lights the proposed action under the ESA, subject to the Incidental Take Statement's terms and conditions. See Bennett v. Spear, 520 U.S. 154, 169-71, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (noting that, while a BiOp is technically advisory only, an agency disregards the BiOp "at its own peril").

However, the ESA's implementing regulations require the agencies completing the project to report back to the FWS on the action's progress and its impact on the species "[i]n order to monitor the impacts of incidental take." 50 C.F.R. § 402.14(i)(3). The agency must immediately reinitiate consultation with the FWS if the amount or extent of incidental taking is exceeded. 50 C.F.R. §§ 402.14(i)(4), 402.16(a).⁵

The 2001 BiOp's accompanying Incidental Take Statement authorized the "incidental take of all spotted owls associated with the removal and downgrading of 22,227 acres of suitable spotted owl habitat." The Reasonable and Prudent Measures include the following statement: "The Service believes that the following reasonable and prudent measures are necessary and appropriate to minimize the impacts of incidental take of the spotted owl . . . [:] Provide appropriate amounts of spotted owl dispersal and suitable habitat in a condition and distribution that facilitates spotted owl movement across the landscape." The Terms and Conditions specify procedures for handling species specimens and require that certain of the timber harvest projects be reviewed for consistency with the BiOp. The Terms and Conditions also require the agencies to report annually on the "actual impacts of the proposed projects," and state that "[i]f take is exceeded, consultation will have to be reinitiated."

II. PROCEEDINGS BELOW

In 2003, ONRC commenced this action, challenging the validity of the BiOp and the Incidental Take Statement. The district court granted defendants' motion for summary judgment in February 2004, and ONRC appealed.

While this case was pending on appeal, we decided Gifford Pinchot. We held that the definition of "destruction or adverse modification" of critical habitat employed by the FWS in assessing jeopardy to the northern spotted owl violated the ESA. Gifford Pinchot, 378 F.3d at 1069-75. The definition in use "set[] the bar too high" by finding adverse modification only where proposed actions impacted "both the survival and recovery of a listed species." Id. at 1069 (emphasis added). We ordered this case remanded to the district court for consideration in light of Gifford Pinchot's relevant holdings. See Or. Natural Res. Council v. Allen, 124 Fed. App'x 555 (9th Cir.2005).

The FWS subsequently acknowledged that Gifford Pinchot rendered a portion of the 2001 BiOp invalid. It voluntarily reinitiated consultation on the land designated as northern spotted owl critical habitat, represented by the FWS to be 5,383 acres. Based on...