NATHANAEL M. COUSINS, United States Magistrate Judge.
The Endangered Species Act makes it unlawful for any person to "take" members of an endangered or threatened species. There is an exception: a person may obtain a permit to take a species, if such taking is incidental to the proposed activity and the applicant presents plans to minimize and mitigate its impact. Here, the primary issue is whether or not a permit applicant should be allowed to piggyback off of the conservation work of a non-applicant neighbor.
Plaintiffs Klamath-Siskiyou Wildlands Center, Center for Biological Diversity, and Klamath Forest Alliance (collectively "KS Wild") allege that defendants U.S. Fish and Wildlife Service and National Marine Fisheries Service (collectively "the Services") improperly issued 50-year incidental take permits to defendant-intervenor Fruit Growers Supply Company to take two "threatened" species: the northern spotted owl and the Southern Oregon/Northern California Coast coho salmon. KS Wild alleges multiple violations of the Endangered Species Act and the National Environmental Policy Act.
KS Wild's key allegation is that Fruit Growers wrongfully obtained an incidental take permit by piggybacking off of the U.S. Forest Service's conservation efforts on neighboring lands.
In discussing the ESA issues, the Court first tackles KS Wild's claims associated with the northern spotted owl. Those claims involve the issue of whether or not the U.S. Fish and Wildlife Service arbitrarily and capriciously issued an incidental take permit to Fruit Growers. The Court also discusses whether FWS erred in issuing a biological opinion that found Fruit Growers' plan to harvest timber would not likely jeopardize the northern spotted owl's continued existence or result in the destruction or adverse modification of critical habitat.
Next, the Court looks at the ESA claims concerning the Southern Oregon/Northern California Coast coho salmon ("coho salmon").
Finally, the Court examines KS Wild's claims that the Services violated the National Environmental Policy Act. Under NEPA, the reviewing agency must issue an "environmental impact statement" that measures the cumulative effects of the environmental action. The Court examines the question of whether the Services' joint Final Environmental Impact Statement conducted a sufficient cumulative effects analysis of Fruit Growers' proposed actions — its timber harvest projects, its plan to use herbicides, and its plan to perform water withdrawal projects. The Court then looks at KS Wild's contention that Fruit Growers violated NEPA by failing to release certain economic data about Fruit Growers, and by failing to quantify its findings as to the environmental consequences of Fruit Growers' proposed action.
For the reasons explained below, the Court GRANTS KS Wild's summary judgment motion and finds the incidental take permits issued by the Services, the biological opinion issued by NMFS, and the Final Environmental Impact Statement invalid. But the Court DENIES KS Wild's summary judgment motion to invalidate the FWS biological opinion. Accordingly, the Services' cross-motion for summary judgment is DENIED as to all issues except the claim involving the FWS biological opinion's validity. As to that claim, the Services' cross-motion is GRANTED.
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Congress enacted the Endangered Species Act of 1973, 16 U.S.C. §§ 1531-1544, "to halt and reverse the trend toward species extinction, whatever the cost." Tenn. Valley Auth. v. Hill, 437 U.S. 153, 184, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978). In accordance with this policy, the ESA directs the Secretary of the Interior or the Secretary of Commerce to list endangered and threatened species. ESA § 4(a), 16 U.S.C. § 1533(a). Section 9 of the ESA makes it unlawful for any person to "take" a species that has been listed. ESA §§ 9(a)(1)(B) and (G), 16 U.S.C. §§ 1538(a)(1)(B) and (G).
Defined broadly, "take" means "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." ESA § 3(19), 16 U.S.C. § 1532(19); see Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or., 515 U.S. 687, 704, 115 S.Ct. 2407, 132 L.Ed.2d 597 (1995) ("Congress intended `take' to apply broadly to cover indirect as well as purposeful actions."). The regulations further define the term "harass" as an "intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding, or sheltering." 50 C.F.R. § 17.3. The regulations define "harm" as "an act which actually kills or injures wildlife. Such act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering." Id.
There is an exception to the ESA's § 9 prohibition on taking. Section 10 of the ESA gives wildlife Services the discretion to issue a permit that allows a private individual to take a species, "if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity." ESA § 10(a)(1)(B), 16 U.S.C. § 1539(a)(1)(B).
Before the Services can issue this "incidental take permit," the permit applicant must submit a "Habitat Conservation Plan." This Plan must show that "the applicant will, to the maximum extent practicable, minimize and mitigate the impacts of the taking," and that "the taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild." ESA § 10(a)(2), 16 U.S.C. § 1539(a)(2). The Secretary
In addition, § 7 of the ESA requires federal agencies to consult with either FWS or NMFS to ensure that any action authorized or carried out by the agency is not likely to jeopardize the continued existence of any endangered or threatened species, or result in the destruction or adverse modification of critical habitat of the species. ESA § 7, 16 U.S.C. § 1536. This process requires the Services to prepare a biological opinion that includes a finding as to whether the proposed action is likely to jeopardize the continued existence of an endangered or threatened species or its habitat. 50 C.F.R. § 402.14. Only after the Service makes this "no jeopardy" finding can it issue an incidental take permit to the applicant.
Congress passed NEPA to protect the environment by requiring that federal agencies scrupulously weigh environmental considerations, and consider potential alternatives to proposed actions before the government launches a major federal action. Lands Council v. Powell, 395 F.3d 1019, 1026 (9th Cir.2005).
Instead of substantive outcomes, NEPA imposes procedural requirements on actions by federal agencies. Id. (citation omitted). For proposed major federal actions — where there is no dispute that the proposed action qualifies as such — NEPA requires the agency to prepare an environmental impact statement. 42 U.S.C. § 4332. "NEPA requires that a federal agency consider every significant aspect of the environmental impact of a proposed action ... [and] inform the public that it has indeed considered environmental concerns in its decisionmaking process." Earth Island Inst. v. U.S. Forest Serv., 351 F.3d 1291, 1300 (9th Cir.2003) (internal quotation marks omitted). "In order to accomplish this, NEPA imposes procedural requirements designed to force agencies to take a `hard look' at environmental consequences." Id.
The northern spotted owl inhabits "structurally complex forests" from southwestern British Columbia through Washington and Oregon to northern California. 77 Fed.Reg. 71876, 71877-78 (Dec. 4, 2012); AR 35983. Dark brown with white spots, dark brown eyes, and a barred tail, northern spotted owls are territorial and usually monogamous. 77 Fed.Reg. at 71883, AR 35984. They rely on older forested habitats that contain the structures and characteristics required for nesting, roosting, foraging, and dispersal 77 Fed. Reg. at 71884.
FWS listed the northern spotted owl as a "threatened" species in 1990 "because of widespread loss of habitat across its range and the inadequacy of existing regulatory mechanisms to conserve it." Id. (citations omitted). In 2004 and 2011, FWS again concluded that the northern spotted owl should remain listed as a threatened species. 77 Fed.Reg. at 71887-88. Notably, historical timber harvest and land-conversion have been identified as the primary causes of an estimated 60 to 88 percent decline in northern spotted owl habitat
FWS first designated federal lands in Washington, Oregon, and California as "critical habitat" for the northern spotted owl in 1992. 57 Fed.Reg. 1796 (Jan. 15, 1992). This designation "identifies specific areas essential to the conservation of a species," and provides additional protection requirements under the ESA as to activities funded, authorized, or carried out by a federal agency. 57 Fed.Reg. at 1797; ESA § 3(5)(A), 16 U.S.C. § 1532(5)(A). FWS revised these designations in 2008 and 2012. That latter revision represented an increase in the total land area identified from previous designations due to the northern spotted owl's "unanticipated steep decline." 77 Fed.Reg. at 71895.
The SONCC coho salmon are anadromous fish, which means they migrate from the sea to fresh water to spawn. Coho salmon have a three-year life cycle — they reach sexual maturity at three years old, and then spawn before dying. AR 35966, 37658. They naturally reproduce and spawn in streams between Punta Gorda, California, and Cape Blanco, Oregon. 62 Fed.Reg. 24588 (May 6, 1997).
As a coldwater species, coho salmon require cool suitable water temperatures for spawning and egg incubation. AR 35969. High water temperatures can reduce growth, lead to egg loss, promote disease, and block upstream or downstream migration. AR 35969. Cool water temperatures are also necessary for juvenile coho salmon while rearing in freshwater environments. AR 35969.
NMFS listed the SONCC coho salmon as "threatened" in May 1997. AR 35966 (citing 62 Fed.Reg. 24588). NMFS designated critical habit for the coho salmon in May 1999. 64 Fed.Reg. 24049 (May 5, 1999). This includes portions of areas affected by Fruit Growers' Habitat Conservation Plan. AR 35966. NMFS identified logging, road building, and water withdrawals as some of the major activities responsible for the coho salmon's decline. 62 Fed.Reg. at 24592.
Indeed, such timber-harvest activities can alter stream features that support coho survival. 62 Fed.Reg. at 24593. For instance, roads serve as a source of sediment to streams. AR 37740-41. Sediment delivered to streams, in turn, can lead to reduced reproductive success as well as reduced growth rates for coho salmon. AR 37743. NMFS expressed "particular concern" over the "increased sediment input into spawning and rearing areas that results from loss of properly functioning riparian areas, land management activities that occur on unstable slopes, and certain agricultural practices." 62 Fed.Reg. at 24592.
In 2009, Fruit Growers submitted an application to FWS for authorization under ESA § 10 to take northern spotted owls on the company's lands in connection with timber harvest operations. AR 40133. Fruit Growers also submitted an incidental take permit application to NMFS for authorization to take coho salmon, which could be affected by logging activities. NMFS AR 150899. FWS and NMFS eventually issued incidental take permits
The incidental take permits apply to 152, 163 acres of Fruit Growers ownership. AR 35942. Fruit Growers manages its lands in northern California in three management units: the Klamath River Management Unit, the Scott Valley Management Unit, and the Grass Lake Management Unit. NMFS AR 150900. The Klamath River and Scott Valley Management Units are located west of the Interstate 5 in Siskiyou County, California, and the Grass Lake Management Unit is located east of the Interstate 5, north of Mt. Shasta, and also in Siskiyou County. NMFS AR 150900.
Before granting the permits, however, the Services required Fruit Growers to submit a Habitat Conservation Plan that specified several factors, including how Fruit Growers planned to minimize and mitigate the take. In addition to reviewing the Plan, the Services also issued an environmental impact statement under NEPA as well as a biological opinion under the ESA. AR 38346 (Final Environmental Impact Statement); AR 34071 (FWS biological opinion); AR 37604 (NMFS biological opinion).
Because Fruit Growers intended to take the northern spotted owl and the coho salmon, the Habitat Conservation Plan presented separate strategies on how to conserve each species.
First, the conservation plan's centerpiece to preserve the northern spotted owl, known as the "Terrestrial Species Conservation Program," involved the creation of Conservation Support Areas on Fruit Growers land. Fruit Growers lands are in a "checkerboard" pattern: they consist of square blocks of land adjacent to federal lands managed by the U.S. Forest Service or the Bureau of Land Management. AR 36000, 36002. These Conservation Support Areas consist of Fruit Growers' land located within 1.3 miles of an owl's "activity center" — that is, the center of the owl's "home range." AR 36133-41; AR 35942 (defining "activity center").
To support northern spotted owl reproduction, an owl's home range requires appropriate amounts of nesting, roosting, and foraging habitat arrayed so that nesting pairs can survive, obtain resources, and breed successfully. 77 Fed.Reg. at 71884; AR 35984. While a home range can vary in size and shape, Fruit Growers' Plan characterizes the home range as a circle drawn around a recognized northern spotted owl activity center (roosting or nesting site). AR 35984. Thus, the parties also refer to home ranges as "owl circles."
Each owl circle covers approximately 3,400 acres, which is equivalent to the area of a circle with a radius of 1.3 miles. AR 35985. Northern spotted owls exhibit "central-place foraging behavior," and, during breeding season, concentrate their activity mostly within a "core area" surrounding the nest tree. 77 Fed.Reg. at 71887; AR 35985. This "core area" of the owl circle covers 500 acres, which is equivalent to the area of a circle with a 0.5 mile radius. AR 35985. Another way to think of the 3400-acre home range is of a circle with an inner ring (0.5 mile radius) and an outer ring (1.3 mile radius).
Under the Fruit Growers Plan, the Conservation Support Areas, located within the 3400-acre owl circle, would provide "demographic support" to the conservation efforts of surrounding landowners, namely the U.S. Forest Service. AR 36133-41. Indeed, the U.S. Forest Service must manage these surrounding lands for the northern spotted owl as part of the Northwest Forest Plan. AR 36265; see also League of
Within the Conservation Support Areas, Fruit Growers would "promote and maintain" general conditions and beneficial habitat features such as "[a]reas composed of tree species associated with use by northern spotted owls (i.e., Douglas-fir with mistletoe infections to provide nesting platforms, [and] hardwoods to provide food and shelter for prey)" and "variable tree densities." AR 36134. Timber harvest on the Conservation Support Areas would be "restricted" and "any harvest ... [would] require evaluation for compliance with the [Habitat Conservation Plan] provisions, and written approval by [FWS]." AR 36134.
The Plan identifies 24 owl circles where Fruit Growers would establish, maintain, and manage Conservation Support Areas during the Plan's 50-year term. By preserving Conservation Support Areas in these 24 owl circles, the Plan would permit Fruit Growers to harvest timber in another 58 owl circles. AR 36200. Even though there are fewer circles with Conservation Support Areas than circles where logging would be permitted, the Plan emphasized that the 24 owl circles have a higher conservation value and "high[er] likelihood of owl use" than the other 58. AR 36138, 36200.
This conservation value was calculated using a number of factors, including the activity center's proximity to areas that FWS designated as northern spotted owl critical habitat. AR 36193. According to the Plan, the 24 activity centers protected by the Conservation Support Areas contribute 55 percent of the total conservation value of activity centers in the area affected by the Plan. AR 36255-56. In contrast, the lower quality activity centers, where take is allowed, represent only 18 percent of the total conservation value. AR 36255-56. The Plan stressed that most northern spotted owls that could be taken would come from activity centers with low conservation value: "the loss of conservation value at these activity centers is mitigated at a 3:1 ratio (in conservation value) by establishment of the [Conservation Support Areas]." AR 36256.
The second key part of the Plan is known as the "Aquatic Species Conservation Program," which contains measures designed to protect and conserve species of fish, including coho salmon. AR 36102. For example, the strategy imposes "limitations on equipment use in and around waters and wetlands to minimize erosion and sedimentation and maintain hydrologic processes" along the miles of streams on Fruit Growers land that contain coho salmon. NMFS AR 150901; see also AR 36099. It also includes a road management plan, under which Fruit Growers must take steps to reduce sediment delivery to streams from those roads by 50 percent within 10 to 15 years of issuance of the permits. AR 36127.
To further evaluate the Plan and the application, Fruit Growers and the Services prepared a Draft Environmental Impact Statement as required by NEPA. 42 U.S.C. § 4321 et seq. The Services published a Notice of Availability of Fruit Growers' Plan and Draft Environmental Impact Statement in the Federal Register on November 13, 2009. AR 12680. In December 2009, the Services held public hearings on the proposed Plan and Draft Environmental Impact Statement, and received public comments until February 2010. Id.; see also AR 38349. The Services
During this time, both FWS and NMFS assessed whether issuing an incidental take permit to Fruit Growers would likely jeopardize the continued existence of an endangered or threatened species, or destroy or adversely modify designated critical habitat. See ESA § 7(a)(2), 16 U.S.C. § 1536(a)(2). In making this determination, FWS and NMFS issued biological opinions. Both concluded that the proposed permit would not jeopardize the species or adversely modify critical habitat. AR 38177-38180; NMFS AR 150828.
Because of the numerous issues raised by the parties, the voluminous administrative record consisting of tens of thousands of pages, and in the interest of judicial efficiency, the Court will describe additional facts germane to the threatened species, the statutes, the Plan, the biological opinion, and the Final Environmental Impact Statement, as necessary as it goes through the parties' various claims.
On August 12, 2013, nine months after the Services issued incidental take permits to Fruit Growers, KS Wild filed a complaint for declaratory and injunctive relief against the Services. Dkt. No. 1. KS Wild alleged that the Services violated the Administrative Procedure Act, the Endangered Species Act, and the National Environmental Policy Act. Dkt. No. 1 at 2.
On August 1, 2014, KS Wild filed a motion for summary judgment seeking to invalidate the incidental take permits, the associated biological opinions, and the Final Environmental Impact Statement. Dkt. No. 53 at 13. In response, the Services filed a cross-motion for summary judgment seeking to uphold the permits, the biological opinions, and the Final Environmental Impact Statement. Dkt. No. 63 at 9. Fruit Growers, who intervened in the case, joined the Services' opposition and cross-motion briefing and filed a supporting brief. Dkt. No. 65.
On November 19, 2014, the Court held a hearing on the summary judgment cross-motions. Dkt. No. 76.
As a threshold issue, this Court must determine whether the plaintiff organizations Klamath-Siskiyou Wildlands Center, Center for Biological Diversity, and Klamath Forest Alliance have standing to sue.
An organization "has standing to bring suit on behalf of its members when its members would have standing to sue in their own right, the interests at stake are germane to the organization's purpose, and neither the claim asserted nor the relief requested requires individual members' participation in the lawsuit." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 169, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000).
For individual members to establish standing the individual must show: (1) an "injury in fact" (2) that is fairly traceable to the challenged conduct of the defendants and (3) the injury is likely to be redressed by a favorable court decision. Natural Res. Def. Council v. Jewell, 749 F.3d 776, 782 (9th Cir.2014) (citing Friends of the Earth, 528 U.S. at 181, 120 S.Ct. 693). Additionally, the interests sought to be protected must arguably be within "the zone of interests" protected by the statute in question. Ass'n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153-54, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970).
Here, the Court finds that each plaintiff organization has established standing. Plaintiffs have submitted declarations
Such interests are germane to the organizations' purpose of advocating "for the forests, wildlife and waters of southern Oregon and northern California." Dkt. No. 55 at 3 (Ruediger Decl.). Members of the organizations include avid hikers, campers, photographers, and ecologists, who spend a significant time in parts of the Klamath-Siskiyou region affected by the Plan. See, e.g., Dkt. Nos. 58 at 3 (Beckett Decl.), 55 at 5-6 (Ruediger Decl.).
The Court can redress the members' injuries in fact by invalidating the permits. See, e.g., Dkt. No. 61 at 10 (Haines Decl.) ("Invalidating the [Plan] and incidental take permits would help to redress my injuries by reinstating protections that benefit northern spotted owls, their habitat, and the forest ecosystems in spotted owl habitat."). Plaintiffs' lawsuit does not require the participation of all of these individual members.
Finally, because plaintiffs' claims seek to protect threatened species and their habitat, plaintiffs' interests fall clearly within the ESA's and NEPA's zone of interests. See Envtl. Prot. Info. Ctr. v. Simpson Timber Co., 255 F.3d 1073, 1079 (9th Cir. 2001) ("the interests [plaintiff] seeks to protect in this litigation clearly fall within the zone of interests contemplated by section 7(a)(2) of the ESA"); W. Watersheds Project v. Kraayenbrink, 632 F.3d 472, 485-86 (9th Cir.2011) (finding plaintiffs' NEPA claims fall within the statute's zone of interest).
For these reasons, and, in particular, because "the case law is abundantly clear that a minimal showing of detriment is all that is required to establish an injury in fact," the Court finds that the plaintiffs have established standing. See Sierra Club v. U.S. Army Corps of Eng'rs, 935 F.Supp. 1556, 1570 (S.D.Ala.1996); see also Japan Whaling Ass'n v. Am. Cetacean Soc'y, 478 U.S. 221, 231 n. 4, 106 S.Ct. 2860, 92 L.Ed.2d 166 (1986) (holding that plaintiff whale watchers alleged sufficient injury in fact by asserting that their ability to engage in whale watching activities would be adversely affected by continued whale harvesting activities of the defendant).
This Court has jurisdiction pursuant to 28 U.S.C. § 1331. Plaintiffs, defendants, and defendant-intervenors consented to the jurisdiction of a magistrate judge under 28 U.S.C. § 636(c). Dkt. Nos. 10, 18, 28.
Summary judgment may be granted only when, drawing all inferences and resolving
A court reviews final agency actions under the "arbitrary and capricious" standard of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A). Friends of Endangered Species v. Jantzen, 760 F.2d 976, 980-81 (9th Cir.1985). Under the APA, the court "shall" set aside any agency decision that it finds "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A).
An agency action is arbitrary and capricious if "the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983).
Review under this "arbitrary and capricious" standard is narrow, and the reviewing court may not substitute its judgment for that of the agency. League of Wilderness Defenders v. U.S. Forest Serv., 549 F.3d 1211, 1215 (9th Cir.2008). Despite this narrow scope of review, the court's inquiry must be "searching and careful." Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). Ultimately, "the agency must articulate a rational connection between the facts found and the conclusions made." Or. Natural Res. Council v. Lowe, 109 F.3d 521, 526 (9th Cir.1997) (citing U.S. v. Louisiana-Pac. Corp., 967 F.2d 1372, 1376 (9th Cir.1992)).
KS Wild asserts that the incidental take permit issued by the Fish and Wildlife Service should be invalidated because the Secretary's finding that Fruit Growers satisfied the minimization and mitigation requirement was arbitrary and capricious. Likewise, KS Wild argues that the biological opinion issued by FWS should be invalidated because its no-jeopardy conclusion was based on false assumptions.
Congress provided an incidental take permit exception to ESA § 9 for takings that are incidental to, and not the purpose of, the execution of an otherwise lawful activity. ESA § 10(a)(1)(B), 16 U.S.C. § 1539(a)(1)(B). As a prerequisite to receiving an incidental take permit, the applicant must submit a habitat conservation plan that specifies:
ESA § 10(a)(2)(A)(i)-(iv), 16 U.S.C. § 1539(a)(2)(A)(i)-(iv). After opportunity for public comment, if the Secretary finds that the permit application and habitat conservation plan satisfies the following, the Secretary "shall" issue the permit:
ESA § 10(a)(2)(B)(i)-(v), 16 U.S.C § 1539(a)(2)(B)(i)-(v).
ESA § 10(a)(2)(B)(ii) requires the Secretary to find that "the applicant will, to the maximum extent practicable, minimize and mitigate the impacts of [the proposed] taking" before issuing an incidental take permit to the applicant. ESA § 10(a)(2)(B)(ii), 16 U.S.C. § 1539(a)(2)(B)(ii). Determining whether an applicant meets this standard for minimizing and mitigating the take "typically requires consideration of two factors: adequacy of the minimization and mitigation program, and whether it is the maximum that can be practically implemented by the applicant." Habitat Conservation Planning and Incidental Take Permit Processing Handbook at 7-3 ("HCP Handbook").
Because the ESA is silent on the definition of "applicant," the Court turns to the regulations issued jointly by NMFS and FWS found at 50 C.F.R. § 402. There, the Services define an "applicant" as "any person, as defined in section 3(13) of the [ESA], who requires formal approval or authorization from a Federal agency as a prerequisite to conducting the action." 50 C.F.R. § 402.02; see also, e.g., Haw. Longline Ass'n v. NMFS, 2002 WL 732363, at *4-5, 2002 U.S. Dist. LEXIS 7263, at *14-15 (D.D.C. Apr. 25, 2002) (looking to 50 C.F.R. § 402 to define "applicant" in ESA claim). Section 3(13) of the ESA, in turn, defines the term "person" as "an individual, corporation, partnership, trust, association, or any other private entity; or any officer, employee, agent, department, or instrumentality of [any federal, state, or municipal government] ... subject to the jurisdiction of the United States." ESA § 3(13), 16 U.S.C. § 1532(13). Meanwhile, "action" is defined as "all activities or programs of any kind authorized, funded, or carried out, in whole or in part, by Federal agencies.... Examples include, but are not limited to ... (a) actions intended to conserve listed species or their habitat...." 50 C.F.R. § 402.02.
Here, in evaluating Fruit Growers' Habitat Conservation Plan, FWS found that applicant Fruit Growers "will, to the maximum extent practicable, minimize and mitigate the impacts of such taking" of the northern spotted owl. AR 40137 (FWS's § 10 "Statement of Findings and Recommendations"); AR 40138 (finding the Plan "is expected to effectively avoid, minimize,
These Conservation Support Areas consist of Fruit Growers land located within the 24 approximately 3400-acre owl circles that Fruit Growers committed to maintaining and managing for the 50-year term of the Plan. Specifically, Fruit Growers committed to preserve a varying number of acres within each of the 24 Conservation Support Areas. For instance, within the owl circle labeled "SK002,"
Overall, FWS identified a total of 82 valid owl circles that would be affected by the Fruit Growers Plan. FWS assigned each of these owl circles — which together support an estimated total of 158 individual northern spotted owls — a "conservation value." AR 36190, 36194-96. FWS assessed the conservation value of each owl circle — expressed as a numeric score — using a formula that considered four variables: (1) the activity center's proximity to designated critical habitat; (2) the owl circle's reproductive status and history; (3) the proportion of private land in the owl circle's inner (0.5-mile radius) and outer (1.3-mile radius) rings; and (4) the owl circle's predicted probability of occupancy. AR 36193. The scores range from the highest conservation value of 111 to the lowest value of O. AR 36104-96. The higher the conservation value, the greater the importance of that owl circle to preserving the northern spotted owl species.
As FWS concluded in its § 10 findings, Fruit Growers would establish Conservation Support Areas on land owned by Fruit Growers that "focus primarily on activity centers with the highest conservation value, to provide demographic support to owl populations" on adjacent federal lands. AR 40138. FWS and Fruit Growers identified the locations of the Conservation Support Areas in large part on the basis of those high conservation values. AR 36193. And under the Plan, the Conservation Support Areas would serve as "mitigation
In the final analysis, according to FWS, the reason why the Conservation Support Areas would serve as "mitigation for incidental take" is that the expected taking by Fruit Growers on lower value owl circles "[would] be offset by the conservation of high quality northern spotted owl habitat" located within owl circles with the highest conservation values containing the Conservation Support Areas. Dkt No. 63 at 20 (citing AR 40141 (emphasis added)). The Services identified 24 such owl circles to be protected by conservation support; 43 owl circles where incidental take would take place; and another 15 owl circles where incidental take would be unlikely. AR 36200. After determining the conservation value of each of the 82 owl circles, the Services identified the percentage of the total conservation value contributed by each category of owl circle:
Category of Owl Circle Number of Total Conservation % of Total Owl Circles Value Score Conservation Value (approximate #) Protected by Conservation 24 1,645 55% Support (contains Conservation Support Areas) Incidental Take is Unlikely 15 808 27% Incidental Take is Likely 43 538 18% Total 82 2,991 100%
AR 36194-96, 36200.
Looking at the data, and highlighting the 55 percent and 18 percent findings, FWS concluded that the "conservation value of the conserved CSAs is three times higher than the conservation value of the activity centers where take would be allowed (55:18 percent)." AR 40139. FWS further combined the total conservation value percentages for (a) the owl circles that would be protected by conservation support, and (b) the circles where incidental take is unlikely. It found that because "82 percent of the total conservation of all activity centers ... would be retained and conserved under the [Plan]," AR 40139, any incidental take by Fruit Growers would be minimized and mitigated.
KS Wild attacks this analysis. In particular, KS Wild believes FWS wrongly "credited" Fruit Growers for the conservation value that the Forest Service — someone other than `the applicant' — would provide within the owl circles. Dkt. No. 53 at 34. Put differently, KS Wild argues that according to ESA § 10(a)(2)(B)(ii), FWS may only consider minimization and mitigation efforts of "the applicant," which here is Fruit Growers; FWS may not factor into its conservation value analysis the minimization and mitigation efforts by neighboring landowners, which in this case consists of the Forest Service. By awarding Fruit Growers "credit" for preserving entire owl circles "even though most of the land in those areas is owned by someone other than [applicant Fruit Growers]," Dkt. No. 53 at 14, KS Wild contends that FWS "relied on factors which Congress has not intended it to consider": actions by someone other than the incidental-take-permit applicant, Dkt. No. 53 at 14 (quoting Motor Vehicle, 463 U.S. at 43, 103 S.Ct. 2856). As KS Wild explains, this renders FWS's "minimize and mitigate" finding arbitrary and capricious.
But according to the Services, there is no "credit" system by which FWS treated Fruit Growers as if it owned acreage that belonged to the federal government or other
Yet according to the Services, just because adjacent federal lands happen to make certain owl circles more valuable for owl conservation than others "does not mean that the Forest Service is being treated as a co-applicant for the permit, or that incidental take coverage extends to those federal lands." Id. Instead, the Services argue that "[b]ecause the Conservation Support Areas are adjacent to designated critical habitat and other high value habitat on federal lands, the protection of which is the linchpin to recovery of the Northern Spotted Owl under the 2011 Revised Recovery Plan," FWS reasonably calculated the conservation values of each owl circle, and properly applied that value in developing the Conservation Support Areas. See Dkt. No. 63 at 34-35.
Counsel for the Services summed up the Services' position at oral argument: "At the end of the day, what is being analyzed and `credited,' to the extent that is happening, is what Fruit Growers is doing on its own land. Period." Dkt. No. 76, Tr. at 11/19/14, 2:44-2:49.
The Court is not persuaded by this characterization, and finds that FWS improperly attributed the conservation values of entire owl circles containing the Conservation Support Areas to applicant Fruit Growers, despite the fact that Fruit Growers' ownership makes up only a fraction of entire owl circles. In doing so, the Services considered the minimization and mitigation efforts of an entity other than "the applicant."
"It is well established that when the statute's language is plain, the sole function of the courts — at least where the disposition required by the text is not absurd — is to enforce it according to its terms." Lamie v. U.S. Trustee., 540 U.S. 526, 534, 124 S.Ct. 1023, 157 L.Ed.2d 1024 (2004) (internal quotation marks and citations omitted); Caminetti v. U.S., 242 U.S. 470, 485, 37 S.Ct. 192, 61 L.Ed. 442 (1917) ("[T]he meaning of the statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain, ... the sole function of the courts is to enforce it according to its terms.").
Here, ESA § 10(a)(2)(B)(ii) states plainly that when issuing an incidental take permit, the Secretary must find that "the applicant will ... minimize and mitigate the impacts of such taking" of an endangered or threatened species. ESA § 10(a)(2)(B)(ii), 16 U.S.C. § 10(a)(2)(B)(ii) (emphasis added). An "applicant," in turn, is someone "who requires formal approval or authorization from a Federal agency as a prerequisite to conducting the action." 50 C.F.R. § 402.02. The "applicant" in this case is not the Forest Service or any other government entity. Fruit Growers is the only "applicant" under ESA § 10 — it alone seeks formal authorization from FWS to pursue actions (e.g., logging) on its own lands without the risk of violating the ESA. AR 35942 ("[Fruit Growers] is applying to USFWS and NMFS for permits allowing incidental take of federally listed threatened species.").
Nonetheless, in evaluating the applicant's minimization and mitigation, FWS factored in the efforts by entities other than applicant Fruit Growers. This is best illustrated by looking at the conservation values for two specific owl circles: out of the 24 owl circles with Conservation Support Areas, the circles labeled "SK378" and "SK238" (attached to this Order as Exhibits 1 and 2, respectively) have the lowest number of acres that Fruit Growers
For SK378, Fruit Growers committed to preserve 33 acres of habitat in the core nesting and roosting area, and a total of 62 acres of habitat in the entire 3400-acre owl circle. AR 36137. This means that for committing to preserve less than two percent of an owl circle, Fruit Growers nevertheless benefited by having that circle's high conservation value score of 100 factored into FWS's calculation of the total conservation value for owl circles with Conservation Support Areas. This, despite the fact that the Forest Service owns over 2,500 acres (or nearly 75 percent) of that circle. AR 34188.
Similarly, owl circle SK238 presents stark results. The Plan required Fruit Growers to preserve 0 acres of core-area habitat, and only 66 acres of habitat for the entire 3400-acre circle. AR 36137. As KS Wild points out, despite Fruit Growers' marginal commitment to preserve less than two percent of the 3400-acre owl circle, and despite the fact that the federal government owns over 2,400 acres (or 70 percent) of that circle, AR 34184, FWS attributed the conservation value of 111 to Fruit Growers.
The Court summarizes these figures in the table below using approximate numbers:
Table 2. Fruit Growers-Supported Owl Circles with Lowest Habitat Commitments
Owl Total Acres Acres Fruit % of Circle % of Circle Conservation
Circle Acres Owned by Growers Owned by Fruit Growers Value
in Owl Forest Committed to Forest Service Committed to
Circle Service Preserve Preserve
SK378 3400 2500 62 73.5% 1.8% 100**
SK238 3400 2400 66 70.5% 1.9% 111*
** Fourth highest conservation value out of 82 valid owl circles affected by Plan. And third highest among the 24 owl
circles with Conservation Support Areas.
* Tied for highest conservation value out of 82 valid owl circles affected by Plan.
Highlighting these two owl circles is not cherry picking. For 17 of the 24 owl circles supported by Conservation Support Areas, Fruit Growers' Conservation Support Areas make up less than 15 percent of the total owl circle. AR 36194-96 (listing conservation value for all circles); AR 36137 (listing number of acres Fruit Growers committed to preserving in circles with Conservation Support Areas). Yet FWS attributed the conservation value of these owl circles to Fruit Growers by adding them to the total conservation value points in owl circles with Conservation Support Areas. Compare AR 36194-96 (listing conservation values for all circles and sum total conservation value) with AR 36200 (showing percentage of total conservation value contributed by each category of owl circle).
FWS then weighted the total conservation value for these 24 owl circles against the total conservation value of owl circles where take is expected to occur. Even though for all but seven of the 24 owl circles, the Conservation Support Areas comprise less than 15 percent of the 3400-acre circle, the "82 percent of the total conservation" figure touted earlier by the Services inure to the benefit of Fruit Growers. AR 40139. This is so even though 27 percent of that 82 percent total conservation value figure does not involve owl circles with Fruit Growers-established Conservation Support Areas; rather they comprise the 15 owl circles where take is not even likely to occur. AR 36200.
Significantly, the conservation value calculations themselves do not factor in Fruit Growers' specific mitigation efforts — its
In other words, the record leaves open the possibility that the conservation values for the highest value owl circles are what they are regardless of whether Conservation Support Areas are ever created in those circles by Fruit Growers. AR 36193.
Contrary to what the Services claimed at oral argument, the Court finds it arbitrary and capricious to conclude: "what is being analyzed and credited ... is what Fruit Growers is doing on its own land." See Dkt. No. 76, Tr. at 11/19/14, 2:44-2:49. In finding that "82 percent of the total conservation of all [owl circles] ... would be retained and conserved under the [Plan]," AR 40139, FWS assumes that it is Fruit Growers' actions that would provide the beneficial conditions to the owls, which then generates high conservation values. This is an arbitrary and capricious assumption.
FWS's weighing of owl-circle conservation values relied on the conservation efforts of entities other than applicant Fruit Growers, namely the Forest Service. It is the Forest Service that owns the overwhelming majority of acreage within the 3400-acre owl circles. Because the Forest Service is not an incidental-take-permit "applicant," FWS erred when it failed to rely solely on Fruit Growers' minimization and mitigation efforts. See Sierra Club v. Babbitt, 15 F.Supp.2d 1274, 1282 (S.D.Ala. 1998) ("FWS cannot comply with the strict ESA mandate that the HCP `minimize and mitigate' the effects of the projects `to the maximum extent practicable' simply by relying on speculative future actions by [nonapplicant] others.").
Additionally, the Services' own guidance, the HCP Handbook at 7-3, states that the Services may only consider habitat conservation measures that are provided by the incidental-take-permit applicant. In those instances where an HCP covers activities implicating multiple landowners, the permit holder must "have specific authority over the other parties affected by the HCP and be willing to exercise that authority, or must secure commitments from them that the terms of the HCP will be upheld." HCP Handbook at 7-5 to 7-6. Here, Fruit Growers possesses no such "specific authority" over the U.S. Forest Service or any other landowner to guarantee that those non-applicants will uphold the terms of the Plan.
In the final analysis, an agency decision is "arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider." Motor Vehicle, 463 U.S. at 43, 103 S.Ct. 2856. By relying on the minimization and mitigation efforts by the U.S. Forest Service, an entity other than the applicant Fruit Growers, FWS improperly found that Fruit Growers satisfied the "minimize and mitigate" requirement in ESA § 10(a)(2)(B)(ii).
Consequently, the decision to issue the incidental take permit was arbitrary and capricious. Applicant landowners seeking to perform actions that would lead to a taking of an endangered or threatened species should not be permitted to obtain incidental take permits by piggybacking off of already-existing conservation efforts by their non-applicant neighbors.
Were the Court to affirm FWS's "minimize and mitigate" finding, Fruit Growers would be permitted to log more than 36,000 acres of suitable northern spotted owl habitat, and take 83 northern spotted owls, while only preserving and protecting 7,100
In their § 10 findings, the Services identified five proposed mitigation measures for the owl taking, the first of which involves the creation of Conservation Support Areas. Another mitigation measure involves increasing the northern spotted owl's dispersal habitat. According to the Services' findings: "The changes in timber management practices identified in the proposed [the Plan] are expected to result in an increase in northern spotted owl foraging and dispersal habitat across [Fruit Growers] ownership over the permit term due to a decrease in clearcutting and other even-aged management practices." AR 40140. The presence of adequate dispersal habitat is essential for the northern spotted owl's population growth as it can provide protection from predators and minimal foraging opportunities. See 77 Fed.Reg. at 71884-85; AR 34093 ("Dispersal habitat is essential to the dispersal of juvenile, non-territorial, or displaced northern spotted owls").
KS Wild argues that the Services' § 10 "minimize and mitigate" finding is arbitrary and capricious because Fruit Growers' promise to increase dispersal habitat through a decrease in clearcutting is unenforceable. KS Wild contends that the Plan does not actually obligate Fruit Growers to reduce clearcutting or increase dispersal habitat. Dkt. No. 53 at 41-42. The Plan also does not set forth objective criteria by which to measure compliance; instead, the Plan only states that Fruit Growers will merely "promote" practices that develop and maintain dispersal habitat. Id.
While the Services concede that the Plan does not explicitly require Fruit Growers to reduce clearcutting as part of its mitigation efforts, the Services point out that "the Plan does expressly require [Fruit Growers] to `promote forest management practices that develop and maintain dispersal habitat across its ownership to provide connectivity between the [Conservation Support Areas] and nearby federal lands.'" Dkt. No. 63 at 26 (quoting AR 36139) (emphasis added by Services). The Services further explain that a decrease in clearcutting is "an expected outcome of [the] Plan due in part to the enforceable obligation of [Fruit Growers] to implement forest management practices that `develop and maintain dispersal habitat across its ownership.'" Id. (emphasis added).
Contrary to what the Services contend in their summary judgment cross-motion, the Plan does not require Fruit Growers to "implement" practices that develop and maintain dispersal habitat. Rather, the Plan only states that Fruit Growers will "promote" such practices. AR 36139. Despite any good faith effort on the part of Fruit Growers to promote or encourage certain forest practices, the Court agrees with KS Wild that the Plan lacks specific obligations to reduce clearcutting.
Moreover, the Plan is bereft of any objective criteria to give it the teeth needed to ensure, through enforcement by the Services or the public, that Fruit Growers' practices will lead to an actual increase in dispersal habitat. See Southwest Ctr. for Biological Diversity v. Bartel, 470 F.Supp.2d 1118, 1140 (S.D.Cal.2006) (enjoining incidental take permit after finding applicant's duty to "avoid" vernal pool habitat "toothless" because the "avoidance standard allows the City or developer to unilaterally determine that a particular development project cannot avoid the vernal pools"). Indeed, there is a difference between "promoting" or expecting the development and maintenance of dispersal
Finally, the Plan itself, in a section of the appendix entitled "Monitoring Protocols," expressly states: "Because [Fruit Growers] will maintain a forested landscape on their ownership, the biological objective for dispersal habitat will be met. No compliance monitoring or additional reporting is required to document compliance with this measure." AR 36449 (emphasis added). As for that statement's conclusory first sentence, the Services in their Final Environmental Impact Statement went on to admit that the statement that "almost any forested landscape can provide dispersal opportunities" is "an oversimplified, if not incorrect, characterization of dispersal habitat." AR 38942 (responding to public comment from KS Wild regarding Draft Environmental Impact Statement).
The fact remains that ESA § 10(a)(2)(B)(ii) requires the Secretary to find that "the applicant will ... minimize and mitigate the impacts" of a taking. ESA § 10(a)(2)(B)(ii), 16 U.S.C. § 1539(a)(2)(B)(ii) (emphasis added). The Secretary cannot make this ESA § 10(a)(2(B)(ii) finding by relying on mitigation that the Services cannot enforce. Here, without concrete, objective criteria to enforce Fruit Growers' commitments to increase dispersal habitat, the Court finds the Services' conclusion that "the applicant will" in fact mitigate the taking of owls by reducing clearcutting to be arbitrary and capricious,
In addition to the Secretary's responsibility to review incidental-take-permit applications under ESA § 10, the Secretary must insure that issuance of a permit complies with ESA § 7(a)(2), 16 U.S.C. § 1536(a)(2). Under § 7, a federal agency must "insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [critical] habitat of such species...." ESA § 7(a)(2), 16 U.S.C. § 1536(a)(2) (emphasis added). In considering whether to issue an incidental take permit, the Service — in this case FWS — must prepare a "biological opinion" addressing whether jeopardy is likely to occur for any protected species. Ctr. for Biological Diversity v. U.S. BLM, 698 F.3d 1101, 1107 (9th Cir.2012) (citing 50 C.F.R. § 402.14). An action will result in "jeopardy" if it will "reduce appreciably the likelihood of both the survival and recovery of a listed species...." 50 C.F.R. § 402.02. In this regard, the "no jeopardy finding required by ESA § 7(a)(2) is identical to the survival finding required under § 10(a)(2)(B)(iv)." Nat'l Wildlife Fed'n v. Babbitt, 128 F.Supp.2d 1274, 1286 (E.D.Cal.2000) (quoting § 10(a)(2)(B)(iv), which requires the Secretary to find "the taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild").
If FWS concludes that jeopardy or adverse modification is likely, then any take resulting from the proposed action is subject to ESA § 9 liability. Ctr. for Biological Diversity, 698 F.3d at 1107 (citations omitted) (noting that while an applicant can technically disregard the biological opinion, "it does so at its own peril"). On the other hand, if FWS "concludes in its biological opinion that no jeopardy or adverse modification is likely, but that the project is likely to result only in the `incidental take' of members of listed species, then the FWS will provide, along with its biological opinion, an incidental take statement authorizing such takings." Id. (citing 50 C.F.R. § 402.14(i)). This incidental take statement "functions as a safe harbor provision immunizing persons from Section 9 liability and penalties for takings committed
Here, KS Wild challenges the validity of FWS's biological opinion. KS Wild argues first that FWS's reliance on Fruit Growers' "unenforceable promise to reduce clearcutting" renders its `no jeopardy' findings under the biological opinion arbitrary and capricious. Dkt. No. 53 at 43. And secondly, that these "no jeopardy" findings are arbitrary and capricious because FWS relied on the incorrect assumption that the forests surrounding Fruit Growers land will remain unchanged during the incidental take permit's 50-year term. Id. at 46.
Under Ninth Circuit law, a wildlife agency may rely on mitigation or conservation measures in issuing a "no jeopardy" biological opinion. Such measures, however, must involve "specific and binding plans" as well as "a clear, definite commitment of resources for future improvements." Nat'l Wildlife Fed'n v. NMFS, 524 F.3d 917, 935-36 (9th Cir. 2008) (finding agency's "sincere general commitment to future improvements" inadequate to support no-jeopardy conclusion). What is more, mitigation measures supporting a biological opinion's no-jeopardy conclusion must be "reasonably specific, certain to occur, and capable of implementation; they must be subject to deadlines or otherwise-enforceable obligations; and most important, they must address the threats to the species in a way that satisfies the jeopardy and adverse modification standards." Ctr. for Biological Diversity v. Rumsfeld, 198 F.Supp.2d 1139, 1152 (D.Ariz.2002) (citing Sierra Club v. Marsh, 816 F.2d 1376 (9th Cir.1987)).
Here, FWS issued a biological opinion concluding that implementation of the Plan "is not likely to jeopardize the continued existence of the northern spotted owl or impede its recovery, and will not destroy or adversely modify designated critical habitat." AR 34258. The biological opinion then summarized the various bases for its determination under four categories: (1) the relative impacts to populations (within the "Action Area," on a regional scale, on a provincial scale, and rangewide); (2) the relative impact of habitat modification; (3) the role of conservation planning and mitigation; and (4) impacts to the northern spotted owl critical habitat. AR 34258-34261.
KS Wild argues that FWS's no-jeopardy finding relies on a mitigation measure that fails to meet the Ninth Circuit's standards. Specifically, KS Wild contends that Fruit Growers' promise to mitigate the taking by reducing clearcutting lacks specific and binding plans, and does not lead to an increase in dispersal and foraging habitat. To support its position, KS Wild cites primarily to Nat'l Wildlife Federation v. NMFS, which involved a biological opinion in which NMFS relied on an action agency's intention to mitigate impacts from building a dam by installing fish passage structures "where feasible." 524 F.3d at 936. The Ninth Circuit invalidated the biological opinion because it was "not persuaded that even a sincere general commitment to future improvements may be included in the proposed action in order to offset its certain immediate negative effects, absent specific and binding plans." Id.
Here, the Court already ruled it was arbitrary and capricious to conclude that Fruit Growers' promise to reduce clearcutting constitutes enforceable mitigation, and agrees with KS Wild that Fruit Growers failed to present "specific and binding plans" as to this particular mitigation measure.
But the Court finds National Wildlife distinguishable because of a difference in
In contrast, FWS in this case relied on several factors to reach its no-jeopardy finding. For instance, FWS looked at the expected percentage reduction in nesting and roosting habitat within various regions, the impact of the taking on the overall conservation value of the area, and the finding that no critical habitat will be directly impacted or adversely modified. AR 34258-34261. FWS also considered how much it expected Fruit Growers' actions would reduce the owl population. AR 34259.
To be sure, in the conclusion section listing the bases for its no-jeopardy determination, the biological opinion does discuss the expected increase in foraging habitat across Fruit Growers land. AR 34260. Elsewhere, the biological opinion also does recognize that "[a]n important aspect of the [Plan] is the ownership-wide increase in foraging and dispersal habitat that is predicted to occur due to changes in [Fruit Growers'] management practices." AR 34241.
But after examining the entirety of the biological opinion, the Court does not find that this mitigation measure constituted a critical, primary, or relatively significant factor in FWS's finding that the Plan is "not likely to jeopardize the continued existence of the northern spotted owl or impede its recovery." So on the one hand, KS Wild claims that "FWS expressly and repeatedly relies on expected increases in... dispersal habitat" to make its no-jeopardy finding. Dkt. No. 53 at 44. On the other hand, however, neither the word "clearcutting" nor the term "dispersal habitat" appear in subsection "6.1 Northern Spotted Owl" of the "Conclusion" section as an identified factor that served as a basis for the no-jeopardy determination. AR 34258-61.
Accordingly, the Court does not find the no-jeopardy conclusions made in FWS's biological opinion to be arbitrary and capricious.
KS Wild argues that FWS's "no jeopardy" findings are also arbitrary and capricious because "FWS assumed that northern spotted owl habitat outside of Fruit Growers land would persist unchanged for the entire 50-year term even though FWS's own [biological opinion] predicts significant declines in spotted owl habitat on surrounding Forest Service lands due to logging, fire, disease, and competition from barred owls." Dkt. No. 53 at 47. In other words, because the biological opinion's no-jeopardy conclusion rests on "internally inconsistent assumptions," this Court should invalidate and vacate the biological opinion. Id. at 13, 47. To support this position, KS Wild relies on Wild Fish
KS Wild's reliance on Wild Fish for that proposition is misplaced. There, the agency knew that a private fish hatchery's operation caused the decline in the bull trout population. In fact, the consulting agency already determined that the hatchery's continued operation would likely "at least reduce, and in some years preclude," migratory bull trout spawning and that the local bull trout population would continue to decline. Wild Fish, 628 F.3d at 527. Yet the agency concluded that the hatchery's operation would not reduce appreciably the likelihood of both the survival and recovery of the population, without reconciling the fact that the necessary spawning is likely to be precluded in some years. Id.
Consequently, the Ninth Circuit invalidated the no-jeopardy finding. The court held that the facts the agency determined did not support its obvious contradictory conclusion that operational changes at the hatchery would improve the contribution of a local population of threatened bull trout to the survival of the species. Id. at 520, 528. According to the court, "the bottom line of the Service's findings is that as a result of the [challenged] action, the local bull trout population will continue to decline." Id. at 528.
To summarize, the infirmity in Wild Fish involved a contradiction between an agency's findings in its biological opinion and its ultimate conclusion. It did not involve a contradiction between assumptions in its findings. See Dkt. No. 53 at 47 (describing "internally inconsistent assumptions").
Moreover, portions of the biological opinion here suggest that FWS did consider changes in habitat conditions. For instance, as KS Wild itself concedes, FWS's biological opinion noted: "[t]hreats to the northern spotted owl in this region included habitat loss due to fires, Federal and private management activities, displacement by barred owls, forest health (insect outbreaks and disease), and potential for avian disease." AR 34194.
Accordingly, because KS Wild cites to no authority for the proposition that an agency's "reli[ance] on conflicting findings" renders a biological opinion arbitrary and capricious, the Court will not invalidate FWS's biological opinion on this basis.
KS Wild offers two main arguments about why this Court should invalidate the incidental take permit issued by the National Marine Fisheries Service. First, KS Wild asserts that the biological opinion itself should be invalidated because NMFS's no-jeopardy finding failed to evaluate the Plan's short-term impacts on coho salmon. Second, KS Wild argues that NMFS erred by finding that the Plan met the requirements under ESA § 10. In addition to failing to meet the no-jeopardy requirement, ESA § 10(a)(2)(B)(iv), 16 U.S.C. § 1539(a)(2)(B)(iv), KS Wild contends that the Plan improperly relied on unenforceable mitigation efforts and did not adequately analyze whether the Plan minimizes and mitigates the impacts "to the maximum extent practicable," ESA § 10(a)(2)(B)(ii), 16 U.S.C. § 1539(a)(2)(B)(ii).
In three ESA cases involving salmon, the Ninth Circuit stressed that NMFS "must consider near-term habitat loss to populations with short life cycles," including
In those cases, the Ninth Circuit faulted the agency for only considering the impact of the planned actions for periods of 10 years or more. See Pac. Coast Fed'n v. NMFS, 265 F.3d at 1037-38 (analyzed impact over a 10-year period); Pac. Coast Fed'n v. BOR, 426 F.3d at 1094 (analyzed impact over eight to 10 years); Nat'l Wildlife Fed'n, 524 F.3d at 934 (finding analysis of six-year period insufficient). Indeed, "[g]iven the importance of the near-term period on listed species survival it is difficult to justify NMFS's choice not to assess degradation over a time frame that takes into account the actual behavior of the species in danger." Pac. Coast Fed'n v. BOR, 426 F.3d at 1094 (quoting Pac. Coast Fed'n v. NMFS, 265 F.3d at 1038).
Here, NMFS failed to analyze the short-term impacts of Fruit Growers' plan to harvest timber on nearby threatened coho salmon, even though NMFS's biological opinion recognized that coho salmon have only a three-year life cycle. AR 37658 ("Adult coho salmon reach sexual maturity at 3 years, and die after spawning."). In reaching its no-jeopardy finding, NMFS relied on broad references to certain impacts to coho salmon habitat expected to occur "[o]ver the course of the 50-year permit term...." AR 37783; see, e.g., AR 37779 ("NMFS anticipates that over the 50-year duration of the proposed action ... there will be management-related occurrences that result in adverse effects to covered species and their habitats."); AR 37783 ("NMFS anticipates a limited extent of habitat supporting covered species could be harmed over the 50-year duration of the permit and such harm would occur stochastically without any predictability."); see also AR 37745 ("Impacts to salmonids or designated critical habitat could occur during the period between permit issuance and treatment if road sites fail and deliver sediment.... However, we believe sediment delivery will occur at lower rates and quantities within the first 15 years than would be expected without implementation of the HCP."). This contravenes Ninth Circuit law.
Nonetheless, the Services attempt to distinguish those cases, which limited their analysis to a particular time, and argue "NMFS has not limited its analysis to any particular timeframe, but rather, has analyzed both short- and long-term impacts from the undertaking of activities, whenever those activities occur during the permit term." Dkt. No. 63 at 38. Even so, this decision to not limit the time frame still "disregard[s] [the Ninth Circuit's] clear instruction" to consider impacts to habitat loss in an applied, time-specific manner that reflects the life cycle of the endangered or threatened species. Nat'l Wildlife Fed'n v. NMFS, 524 F.3d at 934 (citing Pac. Coast Fed'n v. BOR, 426 F.3d at 1094).
The Services also attempt to distinguish the analysis in its biological opinion from Pacific Coast Federation of Fishermen's Associations v. NMFS, 265 F.3d at 1037, where "the agency evaluated distinct planned timber sales on federal land." Dkt. No. 63 at 38. In contrast, here, the Services stress that the "exact location of future timber harvests on [Fruit Growers']
In any case, because NMFS concluded that long-term benefits would outweigh any short-term impacts of logging, without actually adequately analyzing those short-term impacts, the Court finds that NMFS's no-jeopardy conclusion was arbitrary and capricious. Accordingly, the Court invalidates NMFS's biological opinion as well as the accompanying incidental take statement.
The Services do seek summary judgment on this incidental take statement's validity. In its complaint, KS Wild's sixth claim alleges that NMFS violated ESA § 7 when it failed to prepare a legally sufficient incidental take statement. Dkt. No. 1 at ¶¶ 139-142. The Services argue that KS Wild waived this claim by failing to pursue it at summary judgment. Dkt. No. 63 at 50. But because an invalid biological opinion necessarily invalidates the accompanying incidental take statement, the Court will deny the Services' motion as to the validity of NMFS's incidental take statement. See Or. Natural Res. Council v. Allen, 476 F.3d 1031, 1036-37 (9th Cir. 2007) ("Without the `no jeopardy' determination contained in the underlying [biological opinion], the Incidental Take Statement potentially pre-authorizes take for an action that could subsequently be determined to jeopardize the existence of an endangered species.").
Likewise, because the no-jeopardy finding required by ESA § 7(a)(2) is identical to the survival finding required under § 10(a)(2)(B)(iv), Babbitt, 128 F.Supp.2d at 1286, the Court also finds that NMFS's issuance of the incidental take permit was arbitrary and capricious.
KS Wild also argues that NMFS's no-jeopardy and § 10(a)(2)(B)(ii) findings as to the coho salmon are arbitrary and capricious for another reason: NMFS relied on numerous voluntary and unenforceable provisions in the Plan intended to serve as mitigation for the take. Dkt. No. 53 at 51. For instance, KS Wild argues NMFS relied on aspirational and unenforceable assurances that Fruit Growers' "road management plan will result in the gradual reduction of native road mileage across the plan area." AR 37744. In response, the Services contend the Plan does include, among other measures, a detailed road management plan and slope protection measures, both of which will reduce and prevent sedimentation. Dkt. No. 63 at 29. As stated earlier, sedimentation can adversely affect coho salmon.
The Court declines to take up this issue of mitigation enforceability at this time because, as a threshold matter, it finds NMFS arbitrary and capriciously concluded that Fruit Growers satisfied the "minimize and mitigate" requirement under § 10. In fact, in reaching this conclusion in its § 10 finding, NMFS explicitly relied upon the biological opinion's findings. But just as such findings failed to consider the short-term impacts of the Plan, NMFS in its § 10 finding also failed to consider the short-term impacts on coho salmon when determining whether Fruit Growers' proposed conservation measures would mitigate the taking.
NMFS AR 150905 (emphasis added). NMFS goes on to state that "the Biological Opinion concludes that as the conservation measures of the HCP are implemented over time, riparian stands along fish-bearing watercourses are likely to improve in their long term functionality for providing salmonid habitat...." NMFS AR 150905 (emphasis added). From this, the § 10 finding concludes that Fruit Growers "has minimized and mitigated the impacts of authorized take to the maximum extent practicable." NMFS AR 150906.
To be sure, the Plan does include efforts to implement road management measures to prevent and control erosion production and sediment delivery to streams. AR 36126-27. For instance, under one part of the Plan to minimize and mitigate the taking, Fruit Growers describes its "objective [to] reduce road-related erosion delivery potential by 50 percent in the first 10 years of the Permits." AR 36100; see also AR 36127 ("All drainage level road erosion inventories will be completed within 10 years of issuance of the Incidental Take Permits, with the top five priority drainages [out of 20] ... completed in the first 5 years.").
But without considering the three-year life cycle of the coho salmon — and by relying on a biological opinion that only considered the long-term impacts — NMFS arbitrarily and capriciously made its "minimize and mitigate" finding. NMFS's § 10 finding states that the benefits of Fruit Growers' mitigation efforts — in the form of improvements to habitat — will occur "over the duration of the 50-year permit." NMFS AR 150906. In other words, the amount of time it would take for the benefits of Fruit Growers' "sediment reduction strategies" to have a positive impact on coho salmon may far exceed the coho salmon's life-span. See Pac. Coast Fed'n v. BOR, 426 F.3d at 1094 (finding that without an analysis of short-term impacts, the 10-year project at completion, under one scenario, "will not protect the coho, for there will be none to protect").
Accordingly, because NMFS's "minimize and mitigate" finding was arbitrary and capricious, the Court will not reach the question of whether Fruit Growers' proposed mitigation measures are enforceable.
For this same reason, the Court will neither decide the question of whether the biological opinion improperly relied upon unenforceable mitigation measures, nor will it decide whether the Plan minimizes and mitigates the impacts "to the maximum extent practicable" under ESA § 10(a)(2)(B)(ii).
In addition to its claims under the ESA, KS Wild alleges that the Services also violated the National Environmental Policy Act. Under this statute, agencies considering "major Federal actions significantly affecting the quality of the human environment" must prepare and issue an environmental impact statement. 42 U.S.C. § 4332(2)(C); Nw. Envtl. Advocates v. NMFS, 460 F.3d 1125, 1133 (9th Cir.2006). The statement "shall provide full and fair discussion of significant environmental impacts and shall inform decisionmakers and the public of the reasonable
In reviewing the proposed action, NEPA requires an agency to consider the proposed action's impact in the context of all relevant circumstances, such that where "several actions have a cumulative ... environmental effect, this consequence must be considered in an [environmental impact statement]." Neighbors of Cuddy Mountain v. U.S. Forest Serv., 137 F.3d 1372, 1378 (9th Cir.1998) (quoting City of Tenakee Springs v. Clough, 915 F.2d 1308, 1312 (9th Cir.1990)). A cumulative effect is "the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions." 40 C.F.R. § 1508.7 (emphasis added).
Therefore, an environmental impact statement "must analyze the combined effects of the actions in sufficient detail to be `useful to the decisionmaker in deciding whether, or how, to alter the program to lessen cumulative impacts.'" Muckleshoot Indian Tribe v. U.S. Forest Serv., 177 F.3d 800, 810 (9th Cir.1999) (citation omitted). "General statements about `possible effects' and `some risk' do not constitute a `hard look' absent a justification regarding why more definitive information could not be provided." Te-Moak Tribe of W. Shoshone of Nev. v. U.S. Dept. of the Interior, 608 F.3d 592, 603 (9th Cir.2010) (citation omitted).
KS Wild first asserts that the Services' Final Environmental Impact Statement section on cumulative effects lacks "any analysis [] on the cumulative impacts of the timber harvest proposed by [the Plan] and timber harvest on proximate federal and nonfederal lands." Dkt. No. 53 at 59. The Court agrees. The section only generally describes the history of timber operations within the area affected by the Plan. See AR 38609 (describing how logging operations in the early 1900s used "`steam donkeys'" (steam-powered hoists), log chutes, horses, and oxen to transport logs."). "But there is no catalog of past projects and no discussion of how those projects (and differences between the projects) have harmed the environment." Lands Council, 395 F.3d at 1027; see also Muckleshoot, 177 F.3d at 809-10 (environmental impact statement "must catalog[ ] adequately the relevant past projects in the area") (internal citation and quotation marks omitted)). In fact, according to the Final Environmental Impact Statement:
AR 38610.
While the Statement goes on to describe various state and federal regulatory regimes that govern timber projects, AR 38610-12, it fails to discuss what the timber harvest operations are that have taken place and "continue to occur today[.]" AR 38610. These omissions do not satisfy NEPA. See Lands Council, 395 F.3d at 1028 ("[T]he general rule under NEPA is that, in assessing cumulative effects, the Environmental Impact Statement must give a sufficiently detailed catalog[ ] of past, present, and future projects, and provide adequate analysis about how these projects, and differences between the projects, are thought to have impacted the environment.") (citations omitted). The need to inform "decisionmakers and the public" about the Plan's cumulative effects is especially crucial in this case, where the Services, in weighing Fruit Growers' mitigation efforts, relied upon the conservation value of entire owl circles, the bulk of which are made up of vast acres of land that does not belong to Fruit Growers.
For the public and Services personnel to adequately evaluate the cumulative effects of the timber harvests, the Final Environment Impact Statement should have provided "adequate data about the time, type, place, and scale of [past, present, and to the extent known, future] timber harvests and should have explained in sufficient detail how different project plans and harvest methods affected the environment. The [ ] Service[s] did not do this, and NEPA requires otherwise." See id. (citing Muckleshoot, 177 F.3d at 809-10).
KS Wild also argues that the Final Environmental Impact Statement fails to analyze the cumulative effects of herbicide use on coho salmon in areas affected by the Plan. The Services, however, contend that they had no obligation to analyze use of these materials because Fruit Growers never requested herbicide and chemical use be covered under the incidental take permits. Dkt. 63 at 48; see NMFS AR 150901 (stating in § 10 findings that "[a]ctivities not covered by the [incidental take permit] include herbicide and insecticide applications").
Nonetheless, the Services do concede that while NMFS did not evaluate forest chemical use in the Final Environmental Impact Statement, it did evaluate chemical use as an "interrelated and interdependent effect of the proposed action" in its biological opinion. Id. (citing AR 38923). The Services also stated in their Final Environmental Impact Statement that the "applicant [Fruit Growers] periodically applies herbicides that are approved for forestry use" by the California Department of Pesticide Regulation and the Environmental Protection Agency. AR 38389. The regulations define cumulative effect as "the impact on the environment which results from the incremental impact of the action." 40 C.F.R. § 1508.7.
Here, while "the action" consists generally of Fruit Growers' timber harvesting, NMFS itself found herbicide application — to control vegetation and damaging insects — not only "reasonably foreseeable," but also "interrelated and interdependent with the [Plan]." AR 37753. In fact, NMFS's biological opinion went on to identify over a dozen chemicals, their various applications, the ingredients involved, and their effects. AR 37753-62. In light of these considerations, the Court does not see why the decision over whether to analyze the cumulative impact of herbicide use in the Final Environmental Impact Statement hinges on whether or not Fruit Growers requested "coverage" under the permit to use those chemicals.
Finally, KS Wild contends that the Services failed to discuss the cumulative effects of water withdrawals on coho salmon, and on lands affected by the Plan, including nearby federal and nonfederal lands. Dkt. No. 53 at 61. KS Wild points out that on the one hand, the Services state that the "amount and timing" of water drafting is "unquantified," AR 38504, and provide no information as to the proposed use of the withdrawals, the amount of withdrawal, the season of withdrawal, or other related characteristics. See AR 38626.
On the other hand, the Final Environmental Impact Statement includes a series of maps displaying the proposed "water drafting sites" within three regions of Fruit Growers lands subject to the Plan. AR 38449, 38451, and 38453. And shortly after it stated that the amount and timing of water withdrawals from certain stream channels for silvicultural operations or fire suppression purposes are "unquantified," the Services stated that the "applicant does not divert substantial quantities of water from streams in the Plan Area." Instead, the applicant typically "conducts water drafting from Class II streams with [greater flows] ... or more commonly, from off-channel water holes." AR 38504.
The Services respond by arguing that Fruit Growers' water withdrawals over the permit term "cannot be known with certainty because the timing and quantity of such withdrawals depends on where timber and road usage is occurring, which is highly variable." Dkt. No. 63 at 49 (citing AR 35943). Put differently, "[s]uch information need not be analyzed under NEPA because it is speculative." Id. (citing Envtl. Prot. Info. Ctr. v. U.S. Forest Serv., 451 F.3d 1005, 1014 (9th Cir.2006).
The Court disagrees with the Services' response as to future actions involving water withdrawal. Although "[i]t is not appropriate to defer consideration of cumulative impacts to a future date when meaningful consideration can be given now," Kern v. BLM, 284 F.3d 1062, 1075 (9th Cir.2002), nor does the court "require the government to do the impractical," if not enough information is available to permit meaningful consideration, Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208, 1215 (9th Cir.1998) (citation omitted).
Still, projects that are "reasonably foreseeable" should be included in the cumulative effects analysis. 40 C.F.R. § 1508.7. "NEPA requires that an EIS engage in reasonable forecasting. Because speculation is ... implicit in NEPA, [] we must reject any attempt by agencies to shirk their responsibilities under NEPA by labeling any and all discussion of future environmental effects as crystal ball inquiry." N. Plains Res. Council, Inc. v. Surface Transp. Bd., 668 F.3d 1067, 1079 (9th Cir.2011) (internal quotation marks and citation omitted).
Here, the part of the record the Services cite for the proposition that the "amount and location of [Fruit Growers'] water withdrawals over the next fifty years ... cannot be known with certainty" simply states that Fruit Growers "may buy, sell, or exchange timberlands" in the area covered by the Plan during the 50-year term. AR 35943. But the Services have already identified the water drafting sites, and provided detailed maps displaying those locations. AR 38449, 38451, 38453. Even if factors change over the long term, with
Additionally, the Court finds that the Services are capable of identifying past and current projects that involve water withdrawals as part of its cumulative effects analysis. The Final Environmental Impact Statement makes references to present water-drafting activities. See, e.g., AR 38504 (stating "applicant does not divert substantial quantities of water from streams in the Plan Area" and typically "conducts water drafting from ... off-channel water holes"); AR 38548 ("Water drafting for road construction and maintenance, as well as for local fire suppression activities, would continue under the No Action Alternative."). These statements suggest the Services were capable of, but failed to "give a sufficiently detailed catalog[ ] of past [and] present ... [water drafting] projects...." See Lands Council, 395 F.3d at 1028.
In sum, for the public and Service personnel to adequately evaluate the cumulative effects of past, present, and future water withdrawal activities, the Final Environmental Impact Statement should have provided an adequate analysis about how these projects, and differences between the projects, are thought to impact the environment." Id. Its failure to do so was arbitrary and capricious.
KS Wild raises two other NEPA issues. First, KS Wild asserts that the Services violated NEPA by failing to disclose "relevant economic data" in its Final Environmental Impact Statement. In particular, KS Wild argues that the Services failed to give the public "economic information regarding the applicant [Fruit Growers], its harvest plans, business models, and other information necessary to determine whether the minimal beneficial aspects of [the Plan] will be funded and implemented." Dkt. No. 53 at 56-57.
The Court does not find that the Services violated NEPA by failing to disclose economic data. As an initial matter, KS Wild's claim is vague — it is not clear if by "economic information," KS Wild means internal business models, profit-making strategies, or information related to the economic benefits to the wider community (e.g., jobs). In any case, as the Services emphasize, nothing in NEPA or its regulations require a Final Environmental Impact Statement to disclose or analyze the applicant's economic information.
The Court also does not read the cases that KS Wild cites as standing for the proposition that an agency issuing an environmental impact statement must disclose economic information or data about the applicant. See Seattle Audubon Soc'y v. Lyons, 871 F.Supp. 1291, 1324 (W.D.Wash 1994), aff'd sub nom. Seattle Audubon Soc'y v. Moseley, 80 F.3d 1401 (9th Cir. 1996) (finding that "where economic analysis forms the basis of choosing among alternatives, that the analysis must not be misleading, biased, or incomplete," not that economic data must be included in an environmental impact statement); Natural Res. Def. Council v. U.S. Forest Serv., 421 F.3d 797, 813 (9th Cir.2005) (holding that environmental impact statement relying on market demand economic information must not be misleading, not that economic data must be included in an environmental impact statement); Calvert Cliffs' Coordinating Comm., Inc. v. U.S. Atomic Energy Comm'n, 449 F.2d 1109, 1113 (D.C.Cir. 1971) (finding NEPA requires that any "economic and technical considerations" considered by a federal agency must be
For these reasons, the Court denies KS Wild's request that the Court find the Services acted arbitrarily and capriciously in failing to disclose certain economic information or data about applicant Fruit Growers in the Final Environmental Impact Statement.
KS Wild next contends that "the Services violated NEPA in failing to disclose and discuss the quantitative direct, indirect, and cumulative environmental consequences of the proposed action." Dkt. No. 53 at 58. To support the proposition that NEPA requires an agency to quantify its analysis of a proposed action's environmental consequences, KS Wild cites a series of cases, including Neighbors of Cuddy Mountain v. U.S. Forest Serv., 137 F.3d 1372 (9th Cir.1998). There, the Ninth Circuit held that defendant U.S. Forest Service failed to comply with NEPA because its analysis was "very general" and did not discuss in detail the mitigating measures regarding the affected lands. Neighbors, 137 F.3d at 1379-80. Notably, the Neighbors court stated that "[t]o `consider' cumulative effects, some quantified or detailed information is required." Id. "General statements about `possible' effects and `some risk' do not constitute a `hard look' absent a justification regarding why more definitive information could not be provided." Id. at 1380.
The Services counter by stating that Neighbors does not require the Services to provide quantified information, but only that they provide "either" quantified "or" detailed information for a cumulative-impacts analysis. Dkt. No. 63 at 45. The Services highlight KS Wild's reliance on Klamath-Siskiyou, 387 F.3d at 994-95, which expressly found that "[f]or some of the [environmental] factors, it is understandable why a qualitative description such as `improved' or `degraded' is suitable." Id. at 994 n. 1 (emphasis added). The Services state this case undermines KS Wild's argument that NEPA requires a quantitative analysis of environmental effects.
While the Services quoted the Klamath-Siskiyou sentence correctly, they left out the rest of the passage, which distinguished between effects that could and could not be quantified. After stating that qualitative descriptions are suitable at times, the Klamath-Siskiyou court stated: "For example, the factor `Balance of community condition' is probably not susceptible to easy measurement. Factors such as `Amount of suitable and dispersal spotted owl habitat' and `Road density,' on the other hand, are clearly variables that can be quantified." Id.
Here, KS Wild contends that the Final Environmental Impact Statement contains only a relative comparison of the alternative actions without providing measurable or quantifiable differences. The Court does not agree completely with this representation. As examples, the Court looks to the two sample variables from Klamath-Siskiyou that can be quantified: the amount of suitable owl habitat and road density.
As to owl habitat, the Klamath-Siskiyou court stated that while a "calculation of the total number of acres to be harvested... is a necessary component of a cumulative effects analysis, [ ] it is not a sufficient description of the actual environmental effects that can be expected from logging those acres." Id. at 994-95. Here, the Services did more than restate the number of acres to be harvested. As they point out, the Final Environmental Impact Statement's analysis of the northern
As to road density, "stating the total miles of roads to be constructed is similar to merely stating the sum of the acres to be harvested — it is not a description of actual environmental effects." Klamath-Siskiyou, 387 F.3d at 995. Here, the Final Environmental Impact Statement describes a plan for road construction under the "No Action Alternative" and states that "[n]ew road construction is anticipated to average less than 1 mile per year." AR 38541. Under this alternative, because there will be a "gradual reduction in active road mileage over the next 50 years," the "road density in the Plan Area would decrease slightly in the future compared to existing conditions." AR 38541. Even though road density is "clearly a variable[] that can be quantified," Klamath-Siskiyou, 387 F.3d at 994 n. 1, the Final Environmental Impact Statement does not do so. It also fails to quantify the road density under the various alternative plans, including the "Proposed Action." The Services needed to do more.
In sum, the Court agrees partly with KS Wild that there are certain environmental effects in the Final Environmental Impact Statement that should have been quantified. Instead, of using "[g]eneral statements about possible effects," Neighbors, 137 F.3d at 1380 — like the claim that road density will "decrease slightly" — the Services must quantify environmental effects "susceptible to easy measurement," Klamath-Siskiyou, 387 F.3d at 994 n. 1. The Services' failure to do was arbitrary and capricious.
For the reasons explained in this Order, the Court GRANTS KS Wild's summary judgment motion and finds the incidental take permits issued by the Services, the biological opinion issued by NMFS, and the Final Environmental Impact Statement invalid. But the Court DENIES KS Wild's summary judgment motion to invalidate the FWS biological opinion. Accordingly, the Services' cross-motion for summary judgment is DENIED as to all issues except the claim involving the FWS biological opinion's validity. As to that claim, the Services' cross-motion is GRANTED.
The Court orders the parties to brief two more issues.
KS Wild and the Services requested an opportunity for additional briefing on potential remedies. Dkt. Nos. 63 at 60, 73 at 25. The Court GRANTS the request for additional briefing on the remedy issue.
The Services request summary judgment on claim three of KS Wild's complaint. Dkt. No. 63 at 43. In their cross-motion, the Services assert that they are entitled to summary judgment as to this claim because KS Wild failed to pursue it at summary judgment. Indeed, KS Wild
In support of its position, the Services cite to Greater Los Angeles Council on Deafness, Inc. v. Zolin, 812 F.2d 1103, 1115-16 (9th Cir.1987), where the court found plaintiffs "waive[d] their constitutional claims by failing to press them adequately before a court." Id. The Court's tentative view, however, is that the case is distinguishable — it involved a plaintiffs' failure to pursue constitutional claims during trial, not at summary judgment. Id.
In response, KS Wild states that whether it addressed claim three or not, the result is the same: because it demonstrated that the FWS biological opinion's no-jeopardy conclusion was arbitrary and capricious, both the biological opinion and the incidental take statement are invalidated. Dkt. No. 73 at 24. (citing Or. Natural Res. Council v. Allen, 476 F.3d at 1037).
But in light of the fact that the Court did not invalidate FWS's biological opinion, and given the parties' cursory treatment of this incidental-take-statement issue, the Court seeks additional briefing as to why it should not grant summary judgment to the Services on KS Wild's third claim. Additionally, the Court seeks additional briefing concerning why the Zolin case — or any other case articulating the waiver principle — should apply.
Both KS Wild and the Services will be permitted to submit a maximum of 15 pages to brief these two issues. How each side decides to allocate its writing space is entirely up to it. KS Wild must submit its brief within 14 days of this order. The Services must submit their brief within 14 days after KS Wild's brief has been filed. Fruit Growers may also submit a brief (no more than 10 pages) within 14 days after KS Wild's brief has been filed. No reply briefs will be permitted absent leave of court.
A hearing will be held on May 6, 2015, at 11:30 a.m. in Courtroom A, 15th Floor, U.S. District Court, 450 Golden Gate Avenue, San Francisco, California.
Given this Court's request for additional briefing, this Order is not a final appealable order.
KLAMATH-SISKIYOU WILDLANDS CENTER, CENTER FOR BIOLOGICAL DIVERSITY, and KLAMATH FOREST ALLIANCE, Plaintiffs,
v.
NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, NATIONAL MARINE FISHERIES SERVICE, and UNITED STATES FISH AND WILDLIFE SERVICE, Defendants,
and
FRUIT GROWERS SUPPLY COMPANY, Defendant-Intervenor. Case No. 3:13-cv-03717 NC
KLAMATH-SISKIYOU WILDLANDS CENTER, CENTER FOR BIOLOGICAL DIVERSITY, and KLAMATH FOREST ALLIANCE, Plaintiffs,
v.
NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, NATIONAL MARINE FISHERIES SERVICE, and UNITED STATES FISH AND WILDLIFE SERVICE, Defendants,
and
FRUIT GROWERS SUPPLY COMPANY, Defendant-Intervenor.
Case No. 3:13-cv-03717 NC
