Pac Coast Fed'n Ass'n v. Nat'l Marines Fisheries Serv.
| Decision Date | 08 June 2000 |
| Docket Number | N,DEFENDANTS-INTERVENORS-,DEFENDANT-APPELLAN,DEFENDANTS-INTERVENORS,No. 99-36027,AND,PLAINTIFFS-APPELLEES,PLAINTIFF-APPELLEES,99-36027 |
| Citation | 265 F.3d 1028 |
| Parties | (9th Cir. 2001) PACIFIC COAST FEDERATION OF FISHERMEN'S ASSOCIATIONS, INC.; INSTITUTE FOR FISHERIES RESOURCES; OREGON NATURAL RESOURCES COUNCIL; UMPQUA WATERSHEDS; COAST RANGE ASSOCIATION; HEADWATERS,, v. NATIONAL MARINE FISHERIES SERVICE, DEFENDANT, AND DOUGLAS TIMBER OPERATORS; NORTHWEST FORESTRY ASSOCIATION,APPELLANTS. PACIFIC COAST FEDERATION OF FISHERMEN'S ASSOCIATIONG, INC.; INSTITUTE FOR FISHERIES RESOURCES; OREGON NATURAL RESOURCES COUNCIL; UMPQUA WATERSHEDS; COAST RANGE ASSOCIATION; HEADWATERS,, v. NATIONAL MARINE FISHERIES SERVICE,DOUGLAS TIMBER OPERATIONS; NORTHWEST FORESTRY ASSOCIATION,o. 99-36195 |
| Court | U.S. Court of Appeals — Ninth Circuit |
Katherine Barton, Department of Justice, Washington, D.C., for the defendant-appellant.
Mark Rutzick, Portland, Oregon, for the defendants- intervenors-appellants.
Patti Goldman, Earthjustice Legal Defense Fund, Seattle, Washington, for the plaintiffs-appellees.
Appeal from the United States District Court for the Western District of Washington Barbara J. Rothstein, District Judge, Presiding. D.C. No. CV 99-00067-BJR
Before: Alfred T. Goodwin, Procter Hug, Jr., and Melvin Brunetti, Circuit Judges.
The opinion filed May 31, 2001, slip op. 6689 and appearing at 253 F.3d 1137 (9th Cir. 2001) is amended as follows: At slip op. 6707 and 253 F.3d at 1147, delete the last paragraph and replace with:
The district court held that the NMFS acted "arbitrarily and capriciously" when it concluded that three sales of timber that grew in or partly in riparian reserves, Salvage II, Sugar Pine Density Management, and Little River, were consistent with ACS objectives. Little River was a small sale to be permitted under a research exception. The NMFS concluded that the other two sales were "not likely to adversely affect" listed salmonids. We find nothing in the record to call into question NMFS' opinions with respect to these sales. Accordingly, we vacate the order appealed from insofar as it prohibited those three sales. With the exceptions noted, the district court order was free from error, and is affirmed. The appellees are entitled to costs on appeal.
VACATED IN PART AND AFFIRMED IN PART.
With the opinion thus amended, the panel has unanimously voted to deny National Marine Fisheries Service's petition for rehearing and Douglas Timber Operators' and Northwest Forestry Association's petition for rehearing.
Six environmental organizations sued the National Marine Fisheries Service ("NMFS") for declaratory and injunctive relief to challenge four biological opinions which had the effect of clearing the way for 23 proposed timber sales in the Umpqua River watershed in southwestern Oregon. The district court granted substantial relief and the defendant agency, together with intervening timber operators, appeal.
The Pacific Coast Federation of Fishermen's Associations, Inc. and five other organizations representing fishermen and environmental concerns are collectively referred to as "Pacific Coast." Their principal claim is that the "no jeopardy" opinions issued by NMFS filed in Seattle, where the agency has its regional headquarters, were arbitrary and inadequately supported by the "best available science" as required by the Endangered Species Act ("ESA"). At the heart of the controversy is the impact of proposed timber sales on the Umpqua River cutthroat trout and the Oregon Coast coho salmon.1 Douglas Timber Operators ("DTO") and the Northwest Forestry Association were allowed to enter the cases as defendant-intervenors. The cases have been consolidated for this appeal.
Pacific Coast alleged that NMFS acted arbitrarily and capriciously in reaching the conclusion that the proposed timber sales are not likely to jeopardize the continued existence of the listed species. The district court found that NMFS had acted arbitrarily and capriciously by assessing Aquatic Conservation Strategy ("ACS") compliance only at the watershed level, by failing to evaluate short-term degradations, and by failing to fully and sufficiently incorporate the watershed analysis consistently with the "best available science" requirements set by the ESA. The district court granted summary judgment in favor of Pacific Coast. Both NMFS and DTO filed timely appeals.
The DTO assert that the publication of the challenged biological opinions by NMFS is not a final agency action within the meaning of the Administrative Procedures Act, 5 U.S.C. §§ 704, and, therefore, that the district court did not have jurisdiction. The DTO also challenge the venue in the Western District of Washington, asserting that the appropriate defendants are the Bureau of Land Management ("BLM") and Forest Service, whose proposed timber sales prompted this litigation, and whose headquarters are in Portland, in the District of Oregon.
The NMFS issued four biological opinions stating that 23 timber sales in the Umpqua River Basin were not likely to jeopardize the continued existence of the Umpqua cutthroat trout and the Oregon Coast coho salmon. The proposed sales are within the range of the northern spotted owl, and therefore fall within the region covered by the Northwest Forest Plan ("NFP"). The United States Forest Service ("USFS") and the BLM adopted the NFP in 1994. The plan was designed to provide a comprehensive management program for 24.5 million acres of federal forest lands throughout the range of the spotted owl. See Seattle Audubon Society v. Lyons , 871 F. Supp. 1291, 1304 (W.D. Wash. 1994), aff'd 80 F.3d 1401 (9th Cir. 1996). One of the key components of the NFP is the ACS, a comprehensive plan designed to maintain and restore the ecological health of the waterways in the federal forests.
There are four components to the ACS: (1) key watersheds (the best aquatic habitat, or hydrologically important areas), (2) riparian reserves (buffer zones along streams, lakes, wetlands and mudslide risks), (3) watershed analysis (to document existing and desired watershed conditions), and (4) watershed restoration (a long-term program to restore aquatic ecosystems and watershed health). The ACS also has binding standards and guidelines that restrict certain activities within areas designated as riparian reserves or key watersheds. Additionally, ACS has nine objectives designed to maintain or restore properly functioning aquatic habitats.
When a timber sale or other project is proposed for the NFP region, it is initially subject to an internal planning process by the action agency, either the USFS or the BLM. The action agency then creates a team of biologists and other resource management specialists to incorporate the NFP requirements, including ACS standards and guidelines. A biologist on the team uses a Matrix of Pathways and Indicators (the"MPI") and a checklist developed by NMFS to assess the project's effect on listed species. The MPI and checklist help the biologist to analyze 18 different habitat indicators and determine whether they are properly functioning, at risk, or not properly functioning. The biologists also determine whether the proposed action is likely to restore, maintain, or degrade the indicator. Projects that receive either zero or only one degrade checkmark are considered "not likely to adversely affect" listed species.
Those projects determined "likely [to] adversely affect" listed species, i.e., those that received one or more degrade checkmarks, are referred to a Level 1 Team. This team is made up of biologists from various agencies. It reviews the proposed project for ACS consistency. The team can suggest changes in the plan to bring it into ACS compliance.
If the Level 1 Team agrees that the project complies with ACS, it then forwards the project to NMFS for formal consultation. Otherwise, the team elevates the review to a Level 2 Team, and the project undergoes the same review process. Failure to reach a consensus elevates the project to a Level 3 Team. Once one of these three teams approves the project, it goes to NMFS for ESA consultation.
The NMFS must review the project pursuant to Section 7 of ESA, which requires federal agencies to "insure that any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued existence of" any species listed as threatened or endangered under the ESA. 16 U.S.C. §§ 1536(a)(2). Then, NMFS must issue a Biological Opinion.
Pacific Coast sued earlier to challenge the first NMFS opinions with regard to several of the same proposed timber sales in Pacific Coast Federation of Fishermen's Associations, Inc. v. National Marine Fisheries Service, No. C97-775R (W.D. Wash., May 29, 1998) ("PCCFA I"). Pacific Coast challenged in the district court NMFS's Programmatic Biological Opinion and three other site-specific biological opinions.
Reviewing the Programmatic Biological Opinion in PCFFA I, the district court held that NMFS may assume that projects that are consistent with ACS are unlikely to jeopardize the continued existence of a listed species. Jurisdiction in that litigation was not challenged, and there was no appeal.
The court invalidated the site-specific biological opinions in the earlier case because the opinions lacked a basis on which NMFS could conclude that the degrade checkmarks indicated on MPI would have only minor and transitory effects. The agency reinitiated the consultation process after clarifying the documentation required to show ACS consistency and articulating guidance on the "proper " use of MPI in the analysis at the various scales. Using these new procedures, NMFS issued the...
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