Conservation Congress v. Nancy Finley ( 2014 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CONSERVATION CONGRESS, a No. 12-16916
nonprofit corporation,
Plaintiff-Appellant, D.C. No.
3:11-cv-04752-
and SC
ENVIRONMENTAL PROTECTION
INFORMATION CENTER, a nonprofit OPINION
corporation,
Plaintiff,
v.
NANCY FINLEY, in her official
capacity as Field Supervisor, Arcata
Fish and Wildlife Office; U.S. FISH
& WILDLIFE SERVICE, an
administrative agency of the United
States Department of the Interior;
TYRONE KELLEY, in his official
capacity as Forest Supervisor, Six
Rivers National Forest; UNITED
STATES FOREST SERVICE, an
administrative agency of the United
States Department of Agriculture,
Defendants-Appellees,
TRINITY RIVER LUMBER,
Intervenor-Defendant–Appellee.
2 CONSERVATION CONGRESS V. FINLEY
Appeal from the United States District Court
for the Northern District of California
Samuel Conti, Senior District Judge, Presiding
Argued and Submitted
October 8, 2014—San Francisco, California
Filed December 16, 2014
Before: Sidney R. Thomas, Chief Judge, and Diarmuid F.
O’Scannlain and M. Margaret McKeown, Circuit Judges.
Opinion by Chief Judge Thomas
SUMMARY*
Environmental Law
The panel affirmed the district court’s summary judgment
in an action brought under the Endangered Species Act, the
National Environmental Policy Act and the National Forest
Management Act concerning a lumber thinning and fuel
reduction project in northern California, known as the
Beaverslide Project, and its effect on the threatened Northern
Spotted Owl.
The panel first held the district court properly held that
plaintiffs provided sufficient notice of intent to sue to confer
jurisdiction on the district court to entertain the Endangered
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
CONSERVATION CONGRESS V. FINLEY 3
Species Act claims. The panel further held that the
Endangered Species Act claims were not moot because the
Forest Service’s and Fish and Wildlife Service’s newer post-
2012 consultation on the Northern Spotted Owl’s critical
habitat focused specifically on addressing the redesignation
of critical habitat, and did not remedy the alleged failures in
prior consultations to address information in a revised 2011
Recovery Plan for the Northern Spotted Owl.
The panel held that the district court properly granted
summary judgment to the government on the merits of
plaintiffs’ claims under the Endangered Species Act. The
panel held that the district court properly concluded that the
Forest Service did not violate the consultation requirements
of 50 C.F.R. § 402.16 because the Forest Service did not fail
to consider any allegedly “new information” covered by the
2011 Recovery Plan that was not previously considered. The
district court also properly concluded that the agencies did
not fail to use “the best scientific and commercial data
available,” as required by the Endangered Species Act.
The panel held that the Forest Service’s and Fish and
Wildlife Service’s consultations and conclusions that the
Beaverslide Project was not likely to adversely affect the
Northern Spotted Owl were adequate under 50 C.F.R.
§ 402.16, 16 U.S.C. § 1536(a)(2), and the “hard look”
standard of National Environmental Policy Act. Their actions
therefore were neither arbitrary nor capricious.
4 CONSERVATION CONGRESS V. FINLEY
COUNSEL
René P. Voss (argued), San Anselmo, California; James Jay
Tutchton, Tutchton Law Office LLC, Centennial, Colorado,
for Plaintiff-Appellant.
Mark R. Haag (argued) and Robert P. Stockman,
Environment & Natural Resources Division, United States
Department of Justice, Washington, D.C.; Ignacia S. Moreno,
Assistant Attorney General, Washington, D.C.; James Rosen,
Office of the General Counsel, United States Department of
Agriculture, Washington, D.C.; Veronica Rowan, Assistant
Regional Solicitor, United States Department of the Interior,
Washington, D.C., for Defendants-Appellees.
Scott W. Horngren (argued), American Forest Resource
Council, Portland, Oregon, for Intervenor-Defendant-
Appellee.
OPINION
THOMAS, Chief Judge:
We again consider the fate of the threatened Northern
Spotted Owl, this time in the context of a lumber thinning and
fuel reduction project in northern California, known as the
Beaverslide Project. Conservation Congress contends that the
federal government violated various national environmental
laws in failing to consult adequately as to the project’s
CONSERVATION CONGRESS V. FINLEY 5
potential effects on the owl.1 The district court granted
summary judgment in favor of the government, and we
affirm.
I
The Beaverslide Project is located on approximately
13,241 acres of national forest land in Trinity County,
California. According to the United States Forest Service, the
project’s two main purposes are to protect against the current
risk of wildfires due to the dense forest, and to provide a
sustainable, long-term timber supply to local communities.
The project calls for commercial thinning of trees, reduction
of fuels, and the creation of fuel corridors, among other
treatments.
The Northern Spotted Owl is a nocturnal predator that
occupies forest land stretching from southwest British
Columbia through Washington, Oregon, and California. The
owl has been listed as a threatened species under the
Endangered Species Act, 16 U.S.C. § 1531, et seq., since
1990, and many populations of the owl continue to decline.
Recognizing the threat to the owl, the United States Fish and
Wildlife Service issued a 2008 Recovery Plan, as well as a
revised 2011 Recovery Plan, providing recommendations and
suggesting actions to aid in protecting the Northern Spotted
Owl. Recovery Plans are prepared in accordance with section
1533(f) of the Endangered Species Act for all endangered and
threatened species, and while they provide guidance for the
conservation of those species, they are not binding
1
The Environmental Protection Information Center joined Conservation
Congress in both the administrative process and before the district court,
but did not join this appeal.
6 CONSERVATION CONGRESS V. FINLEY
authorities. Friends of Blackwater v. Salazar, 691 F.3d 428,
432–34 (D.C. Cir. 2012).
A
The Forest Service and the Fish and Wildlife Service
consulted on the project’s potential effects on the Northern
Spotted Owl. Both the Endangered Species Act and the
National Environmental Policy Act (“NEPA”), 42 U.S.C.
§ 4321, et seq., establish frameworks for consultations.
The Endangered Species Act “is a comprehensive scheme
with the broad purpose of protecting endangered and
threatened species.” Ctr. for Biological Diversity v. U.S.
Bureau of Land Mgmt., 698 F.3d 1101, 1106 (9th Cir. 2012)
(citation and internal quotation marks omitted). Particularly
relevant here is section 7(a)(2) of the Endangered Species
Act, which governs the consultations that must take place
between agencies. 16 U.S.C. § 1536(a)(2). The Endangered
Species Act imposes both substantive and procedural duties
on agency consultation. Forest Guardians v. Johanns,
450 F.3d 455, 457 (9th Cir. 2006). Substantively, agencies
contemplating certain kinds of federal action are required to
insure that the action they take “is not likely to jeopardize the
continued existence” or “result in the destruction or adverse
modification of [critical] habitat” of an endangered or
threatened species. Conservation Cong. v. U.S. Forest Serv.,
720 F.3d 1048, 1051 (9th Cir. 2013) (alteration in original)
(quoting 16 U.S.C. § 1536(a)(2)). Agencies must consult
with either the Fish and Wildlife Service (for land-based
species) or the National Marine Fisheries Service (for marine
species) to determine the likely effects of their proposed
actions on endangered or threatened species. Id.
CONSERVATION CONGRESS V. FINLEY 7
According to the implementing regulations, the first step
in the consultation process is for the acting agency to
independently determine whether its actions “may affect” an
endangered or threatened species or that species’s habitat.
50 C.F.R. § 402.14(a). If so, the agency must initiate either
informal or formal consultation with the consulting agency.
San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d
581, 596 (9th Cir. 2014); see also 50 C.F.R. § 402.14.
Informal consultation is an “optional process that includes all
discussions, correspondence, etc.” between the two agencies
and is “designed to assist the Federal agency in determining
whether formal consultation or a conference is required.”
50 C.F.R. § 402.13(a). If upon completion of informal
consultation, the two agencies agree in writing that the
proposed action “is not likely to adversely affect” any
endangered or threatened species, no further action is
necessary. Conservation Cong., 720 F.3d at 1051; see also
50 C.F.R. §§ 402.13(a), 402.14(b)(1). However, if either
agency determines that the proposed action is “likely to
adversely affect” a listed species or habitat, formal
consultation is required. See 50 C.F.R. § 402.14. Formal
consultation entails the consulting agency preparing a
“biological opinion” stating whether the proposed action,
“taken together with cumulative effects, is likely to
jeopardize the continued existence of listed species or result
in the destruction or adverse modification of critical habitat.”
50 C.F.R. § 402.14(g)(4).
NEPA is “our basic national charter for protection of the
environment.” Ctr. for Biological Diversity v. U.S. Forest
Serv., 349 F.3d 1157, 1166 (9th Cir. 2003) (citation and
internal quotation marks omitted). The “twin aims” of NEPA
are first, to “place[] upon an agency the obligation to consider
every significant aspect of the environmental impact of a
8 CONSERVATION CONGRESS V. FINLEY
proposed action,” and second, to “ensure[] that the agency
will inform the public that it has indeed considered
environmental concerns in its decisionmaking process.”
Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, Inc.,
462 U.S. 87, 97 (1983) (citation omitted). Unlike the
Endangered Species Act, NEPA does not provide substantive
protections, only procedural ones—it “exists to ensure a
process.” The Lands Council v. McNair, 537 F.3d 981, 1000
(9th Cir. 2008) (en banc) (citation and internal quotation
marks omitted), overruled on other grounds by Winter v.
Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
Foremost among these procedural requirements is that
agencies considering “major Federal actions significantly
affecting the quality of the human environment” are required
to prepare an Environmental Impact Statement (“EIS”).
42 U.S.C. § 4332(C); see also W. Watersheds Project v.
Kraayenbrink, 632 F.3d 472, 486–87 (9th Cir. 2011). The
EIS “shall provide full and fair discussion of significant
environmental impacts and shall inform decisionmakers and
the public of the reasonable alternatives which would avoid
or minimize adverse impacts or enhance the quality of the
human environment.” 40 C.F.R. § 1502.1.
B
To comply with the Endangered Species Act, the Forest
Service issued a Biological Assessment in September 2009,
which independently analyzed the Beaverslide Project and
concluded that the project “may” but was “not likely to
adversely affect” the Northern Spotted Owl. In October
2009, the Fish and Wildlife Service agreed with the Forest
Service’s conclusion in a Letter of Concurrence.
CONSERVATION CONGRESS V. FINLEY 9
In May 2010, the Forest Service issued an “Amendment
#1” to its Biological Assessment, responding to anticipated
changes in the Forest Service’s Supplemental Environmental
Impact Statement, discussed further below. The Forest
Service’s determination that the project “may affect” but was
“not likely to adversely affect” the owl remained unchanged.
In September 2011, the Fish and Wildlife Service again
agreed with this determination in a Technical Assistance
Letter. By this time, the Fish and Wildlife Service’s 2011
Recovery Plan was available, and the Technical Assistance
Letter also concluded that the Beaverslide Project was
consistent with the plan’s recommendations. All other
consultation prior to the letter pre-dated the revised plan.
In May 2011, Conservation Congress sent a notice of
intent to sue under the Endangered Species Act’s citizen-suit
provision to the agencies, as required by 16 U.S.C. § 1540(g).
It submitted a second notice in October 2011, after the 2011
Recovery Plan was published. The second notice alleged that
the Forest Service’s Biological Assessment, its Amendment
#1, and the Fish and Wildlife Service’s concurrence letters no
longer used the best scientific and commercial data available,
and cited to information contained in the 2011 Recovery Plan.
In response to these notices of intent, the Forest Service and
the Fish and Wildlife Service consulted and exchanged
letters, both of which concluded that reinitiating further
consultation in light of the 2011 Recovery Plan was not
necessary.
After litigation in this case had commenced, the agencies
informed us that they conducted one final round of
consultation on the Beaverslide Project. In December 2012,
the Fish and Wildlife Service issued a rule revising the
designation of critical habitat for the Northern Spotted Owl.
10 CONSERVATION CONGRESS V. FINLEY
In response, the Forest Service issued a new assessment in
March 2013, analyzing how the change in the owl’s critical
habitat designation affected the project. It again concluded
that the project was not likely to adversely affect the owl.
The Fish and Wildlife Service also separately prepared a
Biological Opinion in response to its new rule, and concluded
that the project would not result in destruction or adverse
modification of the owl’s habitat.
Concurrent with its consultation under the Endangered
Species Act, the Forest Service also took steps to comply
with NEPA. In November 2009, it issued its EIS.
Conservation Congress, among other parties, filed an
administrative appeal challenging the EIS and its
accompanying Record of Decision, on claims unrelated to
this case. The appeal reviewing officer reversed the Forest
Service’s decision, finding that the EIS did not sufficiently
demonstrate that it was consistent with the forest’s Aquatic
Conservation Strategy. The Forest Service then issued a
Supplemental EIS in October 2010.
Conservation Congress brought suit against the Forest
Service and Fish and Wildlife Service. Its amended
complaint, filed in January 2012, alleged that the agencies
violated the Endangered Species Act, NEPA, and the
National Forest Management Act in their consultation on the
Beaverslide Project.2 On July 2, 2012, the district court
granted summary judgment to the agencies on all claims.
Conservation Congress timely appealed the district court’s
order. On April 12, 2013, the agencies filed a Suggestion of
Partial Mootness in this Court, describing their post-2012
2
Conservation Congress did not appeal any of its National Forest
Management Act claims.
CONSERVATION CONGRESS V. FINLEY 11
consultation on the Northern Spotted Owl’s critical habitat
and arguing that this mooted Conservation Congress’s claims
under the Endangered Species Act.
We have jurisdiction over this case pursuant to 28 U.S.C.
§ 1291. We review a district court’s grant of summary
judgment de novo. Karuk Tribe of Cal. v. U.S. Forest Serv.,
681 F.3d 1006, 1017 (9th Cir. 2012) (en banc). Summary
judgment is appropriate when there is no genuine issue of
material fact and the moving party is entitled to judgment as
a matter of law. Id.
Judicial review of NEPA and Endangered Species Act
claims is conducted under the Administrative Procedure Act,
which allows courts to overturn agency action only if it is
“arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law.” Kraayenbrink, 632 F.3d at 481
(quoting 5 U.S.C. § 706(2)(A) (internal quotation marks
omitted). This standard requires “a rational connection
between facts found and conclusions made” by the defendant
agencies. League of Wilderness Defenders/Blue Mountains
Biodiversity Project v. Connaughton, 752 F.3d 755, 760 (9th
Cir. 2014) (citation and internal quotation marks omitted). In
addition, “when reviewing scientific judgments and technical
analyses within the agency’s expertise, the reviewing court
must be at its most deferential.” Conservation Cong.,
720 F.3d at 1054 (citation and internal quotation marks
omitted).
12 CONSERVATION CONGRESS V. FINLEY
II
A
The district court properly held, contrary to the
government’s assertions, that Conservation Congress
provided sufficient notice of intent to sue to confer
jurisdiction on the district court to entertain the Endangered
Species Act claims. The Act precludes the commencement
of citizen suits “prior to sixty days after written notice of the
violation has been given to the Secretary, and to any alleged
violator of any such provision or regulation.” 16 U.S.C.
§ 1540(g)(2)(A)(i). The notice requirement is jurisdictional,
and thus “failure to strictly comply” is an “absolute bar to
bringing suit under the [Endangered Species Act].” Sw. Ctr.
for Biological Diversity v. U.S. Bureau of Reclamation,
143 F.3d 515, 520 (9th Cir. 1998). We review the adequacy
of a notice of intent to sue de novo. Ctr. for Biological
Diversity v. Marina Point Dev. Co., 566 F.3d 794, 799 (9th
Cir. 2009).
No one disputes that Conservation Congress provided
written notice over sixty days prior to filing its complaint, but
the agencies allege that the notice was insufficient because it
did not inform them that Conservation Congress intended
specifically to argue that the agencies failed to consult about
the project’s short-term effects on the owl. The district court
disagreed, finding that “[w]hile Plaintiffs’ notice could have
been more specific, it provided sufficient detail to put
Defendants on notice of the violations set forth in Plaintiffs’
complaint.”
We agree. The purpose of the Endangered Species Act’s
notice provision is “to put the agencies on notice of a
CONSERVATION CONGRESS V. FINLEY 13
perceived violation of the statute” and to give them the
“opportunity to review their actions and take corrective
measures if warranted.” Sw. Ctr. for Biological Diversity,
143 F.3d at 520 (citation omitted). However, a notice need
not provide the exact details of the legal arguments that the
plaintiffs intend to eventually make. See Marbled Murrelet
v. Babbitt, 83 F.3d 1068, 1072–73 (9th Cir. 1996) (notice that
focused almost exclusively on alleged violations under
section 9 of Endangered Species Act was sufficient even
though plaintiffs ultimately sued under section 7).
Here, Conservation Congress’s second notice of intent
specifically asserted, under a heading entitled “Revised
Spotted Owl Recovery Plan and the need for additional
habitat protection,” that the consultation at hand “did not
discuss the management recommendations detailed in the
revised recovery plan.” This notice could indeed have been
more specific, as the district court observed, but it was
sufficient to notify the agencies that Conservation Congress
intended to sue in part based on the recommendations in the
2011 Recovery Plan regarding possible short-term effects to
the Northern Spotted Owl. The notice was sufficient to
satisfy the requirements under the Endangered Species Act,
and the district court therefore had jurisdiction to consider the
claims.
B
The Endangered Species Act claims are not moot, as the
government contends. “A claim is moot if it has lost its
character as a present, live controversy.” Am. Rivers v. Nat’l
Marine Fisheries Serv., 126 F.3d 1118, 1123 (9th Cir. 1997)
(citation omitted). “If an event occurs that prevents the court
from granting effective relief, the claim is moot and must be
14 CONSERVATION CONGRESS V. FINLEY
dismissed.” Id. (citation omitted). The party alleging
mootness “bears a ‘heavy burden’ in seeking dismissal.”
Rosemere Neighborhood Ass’n v. EPA, 581 F.3d 1169, 1173
(9th Cir. 2009) (citing Friends of the Earth v. Laidlaw Envtl.
Serv., Inc., 528 U.S. 167, 189 (2000)).
The agencies argue that the new consultation between the
Forest Service and Fish and Wildlife Service following the
2012 redesignation of the owl’s critical habitat constitutes a
reinitiation of consultation under the Endangered Species Act
that utilizes the best available data in the 2011 Recovery Plan.
Thus, the agencies assert that whatever remedial actions
Conservation Congress could obtain under the Endangered
Species Act have already been performed.
We recently rejected a similar mootness argument, made
by the same agencies against the same plaintiffs and arising
out of a nearly identical new round of consultation. In
Conservation Congress v. United States Forest Service,
720 F.3d 1048, 1053–54 (9th Cir. 2013), Conservation
Congress appealed a denial of its motion for a preliminary
injunction against the Forest Service and Fish and Wildlife
Service, based on consultation regarding the “Mudflow
Project” and its effect on the Northern Spotted Owl. The
agencies also filed a Suggestion of Mootness in that case,
arguing that Conservation Congress’s Endangered Species
Act claims were mooted by new consultation on the Mudflow
Project, which responded to the same 2012 redesignation of
the owl’s critical habitat described above. Id. We disagreed,
holding that the agencies “continue precisely the behavior
[Conservation Congress] challenges—approving the
Mudflow Project without conducting a cumulative effects
analysis.” Id. at 1053–54.
 CONSERVATION CONGRESS V. FINLEY 15
We are presented with the same circumstance here. The
agencies’ newer consultation focuses specifically on
addressing the redesignation of critical habitat, and does not
remedy the alleged failures in prior consultations to address
information in the 2011 Recovery Plan. Conservation
Congress’s claims under the Endangered Species Act are
therefore not moot.
III
The district court properly granted summary judgment to
the government on the merits of Conservation Congress’s
claims under the Endangered Species Act.
A
The district court properly concluded that the Forest
Service did not violate the consultation requirements of 50
C.F.R. § 402.16. That regulation requires a federal agency to
reinitiate consultation on a proposed action “[i]f new
information reveals effects of the action that may affect listed
species or critical habitat in a manner or to an extent not
previously considered.” 50 C.F.R. § 402.16(b). Contrary to
the government’s assertion, this requirement applies to both
formal and informal consultation. See Forest Guardians v.
Johanns, 450 F.3d 455, 458 (9th Cir. 2006). However, 50
C.F.R. § 402.16 does not require agencies to stop and
reinitiate consultation for “every modification of or
uncertainty in a complex and lengthy project.” Sierra Club
v. Marsh, 816 F.2d 1376, 1388 (9th Cir. 1987).
Here, Conservation Congress alleges that the 2011
Recovery Plan contained “new information” that was “not
previously considered” and therefore that the Forest Service
16 CONSERVATION CONGRESS V. FINLEY
violated 50 C.F.R. § 402.16 by failing to reinitiate
consultation to consider that information.
Assuming for argument’s sake that at least some
information in the 2011 Recovery Plan is new, which is far
from clear,3 we are unpersuaded that the Forest Service failed
to consider any of the allegedly new information covered by
the 2011 Recovery Plan. Conservation Congress contends
that although the Forest Service considered the overall long-
term benefits of the Beaverslide Project to the owl, it did not
sufficiently consider potential short-term effects, contrary to
the suggestions of the plan. However, a close reading of the
Forest Service’s Biological Assessment reveals that it directly
and sufficiently addressed several short-term effects,
including the likely effects of the project’s burning and
thinning methods on the owl’s habitat and the preferred
“refugia and escape cover” vegetation of its most common
prey.
Conservation Congress also argues that the Forest Service
failed to consider the plan’s new information, particularly
drawing from the Dugger study, on how to combat the threat
of invasive barred owls. This assertion is also contradicted
by an examination of the record. Competition from barred
3
There is considerable question, as the district court noted, that any of
the information in the 2011 Recovery Plan is in fact “new.” While the
plan itself post-dates much of the consultation in question, most of the
conclusions and data contained within the plan do not. Conservation
Congress specifically cites to two studies discussed in the plan by
Forsman et al. and Dugger et al. (the “Forsman” and “Dugger” studies,
respectively), which were published in 2011, but much of the information
analyzed in both of these studies is also not “new.” Indeed, the abstract
for the Forsman study describes it as a “meta-analysis” of data drawn from
eleven studies from the period of 1985 to 2008.
CONSERVATION CONGRESS V. FINLEY 17
owls has long been recognized as a major threat to the
Northern Spotted Owl, and was considered in the Forest
Service’s Biological Assessment. Moreover, in response to
Conservation Congress’s notice of intent to sue, the Forest
Service analyzed whether it needed to reinitiate consultation
based on the Dugger study or other information on barred
owls in the 2011 Recovery Plan, and concluded it did not.
Finally, Conservation Congress contends that the Forest
Service did not follow recommendations in the 2011
Recovery Plan and in the Forsman study to develop a broader
conception of “high value” habitat for the Northern Spotted
Owl. But declining 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. Indeed, the Forest Service specifically
considered both the data in the Forsman study and the best
ways to protect the Northern Spotted Owl’s habitat
throughout its consultations.
The Forest Service did not fail to consider “new
information” that “reveals effects of the action that may affect
listed species or critical habitat in a manner or to an extent
not previously considered.” Therefore, the duty to consult
was not triggered, and the district court properly granted
summary judgment on the claim.
B
The district court also properly concluded that the
agencies did not fail to use “the best scientific and
commercial data available,” as required by the Endangered
Species Act. 16 U.S.C. § 1536(a)(2).
18 CONSERVATION CONGRESS V. FINLEY
“The determination of what constitutes the ‘best scientific
data available’ belongs to the agency’s ‘special expertise,’”
and thus when examining such a determination, “‘a reviewing
court must generally be at its most deferential.’” Jewell,
747 F.3d at 602 (quoting Baltimore Gas & Elec. Co.,
462 U.S. 87, 103 (1983)). Agencies “must support their
conclusions with accurate and reliable data,” but “so long as
an agency considers all relevant data, it may rely on that
available evidence even when it is imperfect, weak, and not
necessarily dispositive.” Connaughton, 752 F.3d at 764.
Conservation Congress’s claims that the agencies failed
to use “the best scientific and commercial data available” are
based on the same arguments it employed in arguing its
consultation claims. It contends that both the Forest Service
and the Fish and Wildlife Service failed to use the best
available information on short-term effects to the owl, the
threat of the barred owl, and broader habitat definition and
protection.
However, as we have previously explained, the Forest
Service considered the available data and scientific
information in reaching its conclusions. Under our
deferential standard of review, we are not permitted to
substitute our judgment for the agency’s in determining
which scientific data to credit, so long as the conclusion is
supported by adequate and reliable data. The Forest Service’s
analysis satisfied the requirement of the Endangered Species
Act.
As to the Fish and Wildlife Service, its letters clearly and
extensively reference the Forest Service’s analysis on the
Beaverslide Project, along with the 2011 Recovery Plan.
Because the Forest Service’s analysis is sufficient under the
CONSERVATION CONGRESS V. FINLEY 19
Endangered Species Act, we conclude that the Fish and
Wildlife Service’s consultation based on that analysis is
sufficient as well. We thus agree with the district court that
Conservation Congress “cannot state an [Endangered Species
Act] claim against Fish and Wildlife [Service] based on its
failure to reject adequate analysis by the Forest Service.”4
IV
The district court properly granted summary judgment on
Conservation Congress’s NEPA claims. Courts employ a
“rule of reason” to decide “whether the EIS contains a
reasonably thorough discussion of the significant aspects of
probable environmental consequences.” Neighbors of Cuddy
Mountain v. U.S. Forest Serv., 137 F.3d 1372, 1376 (9th Cir.
1998) (citation and internal quotation marks omitted). This
standard is considered “essentially the same” as the standard
of abuse of discretion, and our analysis under it “consists only
of insuring that the agency took a ‘hard look’” at the
environmental impacts. Id. An agency sufficiently takes a
“hard look” when it conducts a “full and fair discussion of
significant environmental impacts.” W. Watersheds Project
v. Abbey, 719 F.3d 1035, 1047 (9th Cir. 2013) (quoting 40
C.F.R. § 1502.1) (internal quotation marks 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.”
Kraayenbrink, 632 F.3d at 491 (citation and internal
quotation marks omitted).
4
Given our affirmance of summary judgment, it is not necessary to
reach the agencies’ argument that the district court erred in supplementing
the record.
20 CONSERVATION CONGRESS V. FINLEY
Conservation Congress contends that the Forest Service
violated NEPA because its two issued EISs failed to take the
requisite “hard look” at information in the 2011 Recovery
Plan describing potential short-term effects to the Northern
Spotted Owl and the threat of barred owls. However, the two
EISs prepared by the Forest Service contain full and fair
discussions of possible short-term effects to the owl. Indeed,
the Forest Service devotes entire sections of its reports to
analyzing the project’s possible consequences to the owl’s
habitat and to the owl’s most common prey. This analysis
includes discussion of numerous short-term effects.
Likewise, the EISs directly respond to concerns about barred
owls by discussing findings on whether barred owls are
present in the project area, and how the project affects the
barred owl threat. We therefore agree with the district court
that the Forest Service took the requisite “hard look” at
potential dangers to the Northern Spotted Owl and, using its
expertise and discretion, reached its conclusion through a
reasoned analysis.
V
The Forest Service’s and Fish and Wildlife Service’s
consultations and conclusions that the Beaverslide Project is
not likely to adversely affect the Northern Spotted Owl are
adequate under 50 C.F.R. § 402.16, 16 U.S.C. § 1536(a)(2),
and the “hard look” standard of NEPA. Their actions were
neither arbitrary nor capricious. The district court properly
granted summary judgment to the government.
AFFIRMED.