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Conservation Congress v. Finley

United States Court of Appeals, Ninth Circuit

December 16, 2014

CONSERVATION CONGRESS, a nonprofit corporation, Plaintiff-Appellant, and ENVIRONMENTAL PROTECTION INFORMATION CENTER, a nonprofit corporation, Plaintiff,
v.
NANCY FINLEY, in her official capacity as Field Supervisor, Arcata Fish and Wildlife Office; U.S. FISH & WILDLIFE SERVICE, an administrative agency of the United States Department of the Interior; TYRONE KELLEY, in his official capacity as Forest Supervisor, Six Rivers National Forest; UNITED STATES FOREST SERVICE, an administrative agency of the United States Department of Agriculture, Defendants-Appellees, TRINITY RIVER LUMBER, Intervenor-Defendant--Appellee

Argued and Submitted, San Francisco, California: October 8, 2014.

Page 612

[Copyrighted Material Omitted]

Page 613

Appeal from the United States District Court for the Northern District of California. D.C. No. 3:11-cv-04752-SC. Samuel Conti, Senior District Judge, Presiding.

Environmental Law

The panel affirmed the district court's summary judgment in an action brought under the Endangered Species Act, the National Environmental Policy Act and the National Forest Management Act concerning a lumber thinning and fuel reduction project in northern California, known as the Beaverslide Project, and its effect on the threatened Northern Spotted Owl.

The panel first held the district court properly held that plaintiffs provided sufficient notice of intent to sue to confer jurisdiction on the district court to entertain the Endangered Species Act claims. The panel further held that the Endangered Species Act claims were not moot because the Forest Service's and Fish and Wildlife Service's newer post-2012 consultation on the Northern Spotted Owl's critical habitat focused specifically on addressing the redesignation of critical habitat, and did not remedy the alleged failures in prior consultations to address information in a revised 2011 Recovery Plan for the Northern Spotted Owl.

The panel held that the district court properly granted summary judgment to the government on the merits of plaintiffs' claims under the Endangered Species Act. The panel held that the district court properly concluded that the Forest Service did not violate the consultation requirements of 50 C.F.R. § 402.16 because the Forest Service did not fail to consider any allegedly " new information" covered by the 2011 Recovery Plan that was not previously considered. The district court also properly concluded that the agencies did not fail to use " the best scientific and commercial data available," as required by the Endangered Species Act.

The panel held that the Forest Service's and Fish and Wildlife Service's consultations and conclusions that the Beaverslide Project was not likely to adversely affect the Northern Spotted Owl were adequate under 50 C.F.R. § 402.16, 16 U.S.C. § 1536(a)(2), and the " hard look" standard of National Environmental Policy Act. Their actions therefore were neither arbitrary nor capricious.

René P. Voss (argued), San Anselmo, California; James Jay.

Tutchton, Tutchton Law Office LLC, Centennial, Colorado, for Plaintiff-Appellant.

Mark R. Haag (argued) and Robert P. Stockman, Environment & Natural Resources Division, United States Department of Justice, Washington, D.C.; Ignacia S. Moreno, Assistant Attorney General, Washington, D.C.; James Rosen, Office of the General Counsel, United States Department of Agriculture, Washington, D.C.; Veronica Rowan, Assistant Regional Solicitor, United States Department of the Interior, Washington, D.C., for Defendants-Appellees.

Scott W. Horngren (argued), American Forest Resource Council, Portland, Oregon, for Intervenor-Defendant-Appellee.

Before: Sidney R. Thomas, Chief Judge, and Diarmuid F. O'Scannlain and M. Margaret McKeown, Circuit Judges. Opinion by Chief Judge Thomas.

OPINION

Page 614

THOMAS, Chief Judge:

We again consider the fate of the threatened Northern Spotted Owl, this time in the context of a lumber thinning and fuel reduction project in northern California, known as the Beaverslide Project. Conservation Congress contends that the federal government violated various national environmental laws in failing to consult adequately as to the project's potential effects on the owl.[1] The district court granted summary judgment in favor of the government, and we affirm.

I

The Beaverslide Project is located on approximately 13,241 acres of national forest land in Trinity County, California. According to the United States Forest Service, the project's two main purposes are to protect against the current risk of wildfires due to the dense forest, and to provide a sustainable, long-term timber supply to local communities. The project calls for commercial thinning of trees, reduction of fuels, and the creation of fuel corridors, among other treatments.

The Northern Spotted Owl is a nocturnal predator that occupies forest land stretching from southwest British Columbia through Washington, Oregon, and California. The owl has been listed as a threatened species under the Endangered Species Act, 16 U.S.C. § 1531, et seq., since 1990, and many populations of the owl continue to decline. Recognizing the threat to the owl, the United States Fish and Wildlife Service issued a 2008 Recovery Plan, as well as a revised 2011 Recovery Plan, providing recommendations and suggesting actions to aid in protecting the Northern Spotted Owl. Recovery Plans are prepared in accordance with section 1533(f) of the Endangered Species Act for all endangered and threatened species, and while they provide guidance for the conservation of those species, they are not binding authorities. Friends of Blackwater v. Salazar, 691 F.3d 428, 432-34, 402 U.S.App.D.C. 276 (D.C. Cir. 2012).

A

The Forest Service and the Fish and Wildlife Service consulted on the project's potential effects on the Northern Spotted Owl. Both the Endangered Species Act and the National Environmental Policy Act (" NEPA" ), 42 U.S.C. ยง ...


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