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Congress v. George

United States District Court, N.D. California

May 7, 2015

CONSERVATION CONGRESS, Plaintiff,
v.
MERV L. GEORGE, JR., et al., Defendants.

ORDER DENYING PLAINTIFF'S AND GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT

THELTON E. HENDERSON, District Judge.

This case came before the Court on May 4, 2015, on the parties' cross-motions for summary judgment. After carefully considering the arguments of the parties in the papers and at the hearing, the Court now DENIES Plaintiff's motion and GRANTS Defendants' cross-motion for summary judgment, for the reasons set forth below.

BACKGROUND

This matter concerns whether the U.S. Forest Service ("Forest Service") and U.S. Fish & Wildlife Service ("Fish & Wildlife Service") (collectively "agencies" or "Defendants") adequately considered the environmental effects of the Kelsey Peak timber project ("Project") in the Six Rivers National Forest ("Forest"). The Forest and the Project are located near the city of Eureka in Northern California. FS000200.[1]

The Forest is governed by the Six Rivers National Forest Land and Resource Management Plan, which sets guidelines for forest management practices. FS016981 et seq. Additional guidelines for the protection of Northern Spotted Owl habitat in the Forest are established by the Northwest Forest Plan Record of Decision. FS017823 et seq. The Land and Resource Management Plan and Forest Plan Record of Decision are collectively referred to as the "Forest Plan."

The Project has two stated purposes: (1) to "Provide timber commodities that contribute towards the Forest's sustainable supply goals to help support local economies;" and (2) to "Provide fuelbreaks along strategic road corridors to improve fire protection and human safety for both the forest and adjacent communities." FS000159. To achieve these goals, the Project proposes "thinning from below, " or selectively harvesting the smaller trees in an area, in 1, 718 acres in the Forest, as well as performing "Fuelbreak treatments" in 2, 192 acres, approximately 399 of which overlap with the commercial harvest acres. FS000160. The Project will also construct 2.6 miles of temporary roads, occupying 16.9 acres of land area. Id.

"The entire project occurs in 2012 northern spotted owl critical habitat." FS000288. The Northern Spotted Owl ("Owl") is listed as a "threatened" species under the Endangered Species Act. 50 C.F.R. § 17.11 (1990). The Fish & Wildlife Service promulgated a Recovery Plan for the Owl in 2011, which lists Recovery Actions that must be taken to promote the Owl's recovery, including monitoring risks from a competitor species, the Barred Owl. FS015734 et. seq.; FS015835.

Because of the Owl's status as a threatened species, the Forest Service performed a biological assessment of the Project's impacts on the Owl, in which it concluded that the Project "May Affect but [is] Not Likely to Adversely Affect" the Owl. FS001407. The Forest Service requested the Fish & Wildlife Service to concur with this determination, and thereby conclude the "informal consultation" between the agencies. FWS000557. However, the Fish & Wildlife Service determined that "formal consultation was warranted, " given the Project's proximity to other projects. FWS000625. The Fish & Wildlife Service subsequently issued a biological opinion in which it concluded that "the proposed action is not likely to jeopardize the continued existence of the northern spotted owl or result in adverse modification of designated critical habitat for the northern spotted owl." FWS000637.

The Project also falls within the habitat of the Northern Goshawk. FS000315. The Northern Goshawk is not a listed species under the Endangered Species Act, but it is designated as a "sensitive species" under the Forest Plan. FS017011. The Forest Service evaluated the effects of the Project on the Northern Goshawk and determined that the Project "may impact individuals, but is not likely to result in a trend toward Federal listing or loss of viability for the goshawk in the Forest Plan area." FS000323.

Management activities in the Forest that impact water quality are governed by a 2010 Waiver of Waste Discharge Requirements. FS001767. The Forest Service stated that it will submit an application to include the Project in the Waiver after the final record of decision for the Project was signed, which occurred in April of 2014. FS000418; FS000155. The Forest Service developed a set of "best management practices... for the protection of soil and water resource values" which are incorporated into the Project. FS001576-85. Management activities must also comply with the Aquatic Conservation Strategy, and the Forest Service determined that "This project is consistent with the Aquatic Conservation Strategy because it is designed to contribute to maintaining or restoring both the conditions of the planning area and the conditions of the watershed as a whole, with only minor short-term negative effects." FS000424.

Plaintiff, an environmental conservation organization, alleges that the agencies' environmental review was deficient under the Endangered Species Act, the National Forest Management Act, and the National Environmental Policy Act. Plaintiff's Mot. at 9 (Docket No. 31). Plaintiff argues that these violations require an injunction stopping the Project from going forward. Id. Defendants cross-move for summary judgment on all of Plaintiff's claims. Def.'s Cross-Mot. at viii (Docket No. 33).

LEGAL STANDARD

Challenges to agency action under the Endangered Species Act, National Forest Management Act, and National Environmental Policy Act are governed by the Administrative Procedure Act. San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 601 (9th Cir. 2014) (ESA and NEPA claims); Earth Island Inst. v. U.S. Forest Serv., 697 F.3d 1010, 1013 (9th Cir. 2012) (NFMA and NEPA claims). Under the Administrative Procedure Act, a court should only set aside agency action if the action is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A); 16 U.S.C. § 1855(f)(1)(B) (adopting the standards for judicial review under 5 U.S.C. § 706(2)). This is a "highly deferential" standard of review, and an agency's action is presumed to be valid and should be affirmed "if a reasonable basis exists for its decision." Indep. Acceptance Co. v. California, 204 F.3d 1247, 1251 (9th Cir. 2000) (internal quotation marks and citation omitted).

"In conducting an APA review, the court must determine whether the agency's decision is founded on a rational connection between the facts found and the choices made[, ] and whether the agency has committed a clear error of judgment." River Runners for Wilderness v. Martin, 593 F.3d 1064, 1070 (9th Cir. 2010) (quotation and citation omitted). "The agency's action need only be a reasonable, not the best or most reasonable, decision." Id. (quotation and citation omitted). "[W]hen reviewing scientific judgments and technical analyses within the agency's expertise, the reviewing court must be at its most deferential." Conservation Congress v. Finley, 774 F.3d 611, 617 (9th Cir. 2014) (quotation and citation omitted).

At the same time, courts "must not rubber-stamp' administrative decisions that [they] deem inconsistent with a statutory mandate or that frustrate the congressional policy underlying a statute." Ocean Advocates v. U.S. Army Corps of Eng'rs, 402 F.3d 846, 859 (9th Cir. 2005) (quotation and citation omitted).

"[S]ummary judgment is an appropriate mechanism for deciding the legal question of whether the agency could reasonably have found the facts as it did." Occidental Eng'g Co. v. INS, 753 F.2d 766, 770 (9th Cir. 1985). Review is generally "limited to the administrative record on which the agency based the challenged decision." Fence Creek Cattle Co. v. U.S. Forest Serv., 602 F.3d 1125, 1131 (9th Cir. 2010).

DISCUSSION

I. PLAINTIFF'S ENDANGERED SPECIES ACT CHALLENGES FAIL

Plaintiff brings four challenges under the Endangered Species Act: (1) Defendants did not adhere to the procedural requirements of formal consultation; (2) Defendants failed to consider the recommendations of a White Paper regarding the Owl or the negative effects of thinning Owl habitat; (3) the Project proposes thinning Owl habitat to tree densities below the relevant habitat definitions; and (4) the Project does not monitor threats to the Owl from the Barred Owl. Each of these claims fails.

A. Endangered Species Act Requirements

Before a federal agency takes an action on land that has been designated as "critical habitat" of an endangered or threatened species, the agency must ensure that the action will not "jeopardize the continued existence" of the species or "result in the destruction or adverse modification" of critical habitat. 16 U.S.C. § 1536(a)(2). In evaluating potential actions under the Endangered Species Act, "each agency shall use the best scientific and commercial data available." Id.

"Adverse modification" of critical habitat is a term of art; it only applies when an action "appreciably diminishe[s]" the value of the habitat. Conservation Cong. v. U.S. Forest Serv., 720 F.3d 1048, 1050 (9th Cir. 2013). In Conservation Congress, one of Plaintiff's previous cases, the Ninth Circuit rejected Plaintiff's argument that thinning Owl habitat below the recommended tree density necessarily constituted adverse modification of habitat, because tree density is only one factor among several to be considered in a general characterization of habitat. Id. at 1057. The court upheld Defendants' determination that such thinning, along with removing small amounts of habitat for helicopter landings and fuelbreaks, was not adverse modification, because the surrounding area could adequately support the local Owl population. Id. at 1057-58 ("Even completely destroying 22 acres of critical habitat does not necessarily appreciably diminish the value of the larger critical habitat area.").

The Endangered Species Act and its implementing regulations set forth the procedure that agencies must follow in evaluating actions. The agency proposing an action prepares a "biological assessment, " in which it evaluates the effects of the proposed action. 50 C.F.R. § 402.12(a). If the agency determines that an action is not likely to adversely affect a threatened or endangered species, it can obtain the written concurrence of the Fish & Wildlife Service, and thereby complete "informal consultation" for the action. Id. §§ 402.12(k)(1), 402.13(a), 402.14(b)(1).

If the agency determines that the action may adversely affect a threatened or endangered species, or if the Fish & Wildlife Service disagrees about whether the action is "not likely to adversely affect" such a species, the agencies must undergo "formal consultation." Id. § 402.14. In the formal consultation process, the Fish & Wildlife Service prepares a "biological opinion, " in which it evaluates the effects of the proposed action. 16 U.S.C. § 1536(a)-(b). If the Fish & Wildlife Service determines in the biological opinion that the action "is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species, " then the agency has satisfied its obligations under the Endangered Species Act unless the circumstances change. 50 C.F.R. §§ 402.15, 402.16.

If the Fish & Wildlife Service determines that the action may jeopardize the species or result in the adverse modification of critical habitat, it must inform the agency of the "reasonable and prudent alternatives" that should be implemented to minimize the impact on the species. 16 U.S.C. § 1536(b)(3)(A); 50 C.F.R. § 402.14(h). The agency must then determine whether it can still take the action, or an alternative, while ensuring that the species will not be jeopardized or have its habitat adversely modified, or whether it must apply for an exemption. 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.15(a).

The Endangered Species Act also requires the Fish & Wildlife Service to develop recovery plans for each threatened and endangered species. 16 U.S.C. § 1533(f). Although "recovery plans do not have the force of law, " and so federal agencies do not necessarily have to comply with them, consistency with such plans is a factor to consider in determining whether approval of an agency action was arbitrary or capricious. See Cascadia Wildlands v. Thrailkill, 49 F.Supp. 3d 774, 2014 WL 4724855, at *12-13 (D. Or. Sept. 23, 2014); see also Friends of Blackwater v. Salazar, 691 F.3d 428, 434 (D.C. Cir. 2012) ("[A] recovery plan, even if not binding, so long as the species is endangered provides objective, measurable criteria' by which to evaluate the Service's progress toward its goal of conserving the species.").

B. Defendants Did Not Violate the Endangered Species Act

1. Defendants' consultation was not improper

Plaintiff's first argument is that Defendants violated the Endangered Species Act by not following the proper consultation procedure. As noted above, the Forest Service did not request the Fish & Wildlife Service to prepare a biological opinion; rather, the Fish & Wildlife Service independently decided to prepare one, because of the Project's proximity to other projects. Plaintiff argues that it was a violation for the Fish & Wildlife Service to undertake "formal consultation" without a request from the Forest Service, because such consultation "must be initiated by the action agency." Mot. at 25.

Plaintiff misunderstands what is required by the consultation procedure. There is no requirement that the Fish & Wildlife Service can only prepare a biological opinion when requested to do so by another agency. To the contrary, "The [Fish & Wildlife Service] may use the results of the biological assessment in (i) determining whether to request the Federal agency to initiate formal consultation or a conference, [or] (ii) formulating a biological opinion...." 50 C.F.R. § 402.12(k)(2). The regulations allow the Fish & Wildlife Service to prepare a biological opinion based on the biological assessment, even if not requested to do so by the agency; this is exactly what happened in this case.

Also, although a federal agency may initiate formal consultation through a written request submitted to the Fish & Wildlife Service, the agency "need not initiate formal consultation" if, as the result of a biological assessment or informal consultation, the Fish & Wildlife Service concurs that the proposed action is not likely to adversely affect any listed species or habitat. 50 C.F.R. § 402.14(b). Here, the Forest Service did not need to initiate formal consultation, because the Fish & Wildlife Service determined in its biological opinion that "the proposed action is not likely to jeopardize the continued existence of the northern spotted owl or result in adverse modification of designated critical habitat for the northern spotted owl, " and therefore concurred with the conclusion of the biological assessment. FWS000637; FS001407. It does not matter that the Forest Service did not request formal consultation, because the Fish & Wildlife Service found that the Project would not put the Owl or its habitat in jeopardy.

Plaintiff seeks a hyper-technical interpretation of the regulations to gloss over the fact that the Forest Service did not need to initiate formal consultation in this case. Plaintiff's interpretation is incorrect, and Defendants performed a more thorough environmental review than what was required by the regulations. Defendants' actions were consistent with the law; they were not arbitrary or capricious. Plaintiff's first Endangered Species Act challenge fails.

2. Defendants used the best scientific data available

Plaintiff's next argument is that Defendants failed to consider the "best scientific data available, " as required by the Endangered Species Act, because they did not adopt the recommendations of a White Paper on Owl behavior. Mot. at 25-26. Specifically, Plaintiff raises three objections: (1) Defendants should have adopted guidelines that required Owl "core areas" (i.e., ranges surrounding known nest locations) to include 60-70 percent nesting habitat, and 30-40 percent foraging habitat, rather than the 48 and 28 percent requirements that Defendants adopted; (2) Defendants should have defined high-quality nesting habitat as containing trees with a diameter greater than 15 inches; and (3) Defendants should have required core areas to contain 85% canopy closure, rather than 60% canopy closure. Id.

The threshold, and determinative, flaw in Plaintiff's argument is that Defendants plainly did consider all of the scientific data about which Plaintiff complains. Each of the recommendations described above was included in the administrative record, and Defendants cited this research in the biological assessment and biological opinion. E.g., FS001353; FS003215-16; FWS000633, 48, 87. Plaintiff therefore cannot argue that Defendants failed to consider the best scientific data available. Conservation Cong. v. Finley, 774 F.3d 611, 620 (9th Cir. 2014) ("[D]eclining to adopt particular recommendations in a recovery plan or a study - neither of which is binding on an agency - does not constitute failing to consider them under 50 C.F.R. § 402.16.").

Because it is clear that Defendants considered the required data, Plaintiff also argues that, having considered this data, Defendants should have come to a different conclusion. This argument also fails. An agency action should be affirmed if a reasonable basis exists for its decision. Indep. Acceptance Co., 204 F.3d at 1251. Courts are at their most deferential when reviewing scientific judgments within an agency's area of expertise. Conservation Cong., 774 F.3d at 617.

Plaintiff's first objection fails because its preferred habitat levels are based on a single predictive model, and Defendants reasonably based their conclusion on the average over all models, not just the one that Plaintiff prefers. FS00315-16; FS015581. Defendants do not need to adopt the recommendations from the single most protective model, so long as they consider them. Conservation Cong., 774 F.3d at 620.

Plaintiff's second objection fails because Defendants based their habitat definitions on the broadly accepted Forest Plan and Recovery Plan definitions, which have been in place since 1995 and 2011, respectively. FS015576. The White Paper definition of high-quality habitat, by contrast, was designed for use on private lands in the Klamath interior region, and research indicates that Owls in the two regions "use very different habitat for nesting...." FS015580. It was reasonable for Defendants to conclude that the geographic focus of the White Paper limited its application in the Forest. Also, using Plaintiff's proposed definition would over-estimate the amount of available habitat because it would include smaller trees that Owls tend to avoid. FS015580-81.

And Plaintiff's third objection fails because its recommendation of 85% canopy cover is based on only a small sample in one study, whereas Defendants' requirement of 60% canopy closure comes from the Forest Plan itself. See FS015581. Defendants are not required to tailor their habitat definitions to the findings of a single study, so long as they consider the relevant research and their ultimate conclusions are reasonable. Conservation Cong., 774 F.3d at 620.

Defendants' conclusions are reasonable, not arbitrary or capricious. Not only did they consider the best scientific data available, as they were required to, but they reasonably articulated connections between that data and their conclusions. Plaintiff's second Endangered Species Act challenge therefore fails.

3. Defendants reasonably concluded that thinning would not harm the Owl

Plaintiff's next argument is that it was arbitrary or capricious for Defendants to conclude that thinning the Owl habitat in the Project will not result in the "downgrade" of any habitat. Plaintiff argues that Owls prefer dense, old-growth forest, and by removing trees from the forest, Defendants will harm the quality of Owl habitat.

In the Six Rivers National Forest generally, and for the Project specifically, Defendants classify Owl habitat based on the definition in the Forest Plan. FS015576. The Forest Plan defines "suitable" Owl habitat as forest stands with 60-70% canopy closure or greater and containing large, live coniferous trees with deformities; and an ...


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