Cascadia Wildlands v. Jim Thrailkill , 806 F.3d 1234 ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CASCADIA WILDLANDS; OREGON No. 14-35819
WILD; CENTER FOR BIOLOGICAL
DIVERSITY, D.C. No.
Plaintiffs-Appellants, 6:14-cv-01236-
TC
v.
JIM THRAILKILL; UNITED STATES OPINION
FISH AND WILDLIFE SERVICE,
Defendants-Appellees,
BOISE CASCADE WOOD PRODUCTS,
LLC; ROUGH & READY LUMBER,
LLC; SWANSON GROUP MFG. LLC,
Intervenor-Defendants–Appellees.
Appeal from the United States District Court
for the District of Oregon
Thomas M. Coffin, Magistrate Judge, Presiding
Argued and Submitted
April 6, 2015—Seattle, Washington
Filed December 3, 2015
Before: Michael Daly Hawkins, Johnnie B. Rawlinson,
and Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Rawlinson
2 CASCADIA WILDLANDS V. THRAILKILL
SUMMARY*
Environmental Law
The panel affirmed the district court’s order denying
plaintiff environmental groups’ motion for a preliminary
injunction that sought to enjoin the Douglas Fire Complex
Recovery Project in the southern Oregon Klamath Mountains,
and challenging the biological opinion issued by the United
States Fish and Wildlife Service.
The Medford District of the Bureau of Land Management
initiated the Recovery Project aimed at salvaging burned
acreage. Pursuant to Section 7 of the Endangered Species
Act, the Bureau consulted with the Fish and Wildlife Service,
which issued a biological opinion concluding that the
Recovery Project was not likely to jeopardize the Northern
Spotted Owl or destroy or adversely modify its critical
habitat.
The panel held that the district court acted within its
discretion when it concluded that plaintiffs failed to prove a
likelihood of success on the merits. Specifically, the panel
held that the district court acted within its discretion when it
found that the Fish and Wildlife Service’s conclusions were
supported by the best available science, and were not
arbitrary and capricious.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
CASCADIA WILDLANDS V. THRAILKILL 3
COUNSEL
Susan Jane McKibben Brown (argued), Western
Environmental Law Center, Portland, Oregon; Jordan
Beckett, Beckett Law Office PC, Ashland, Oregon, for
Plaintiffs-Appellants.
Elizabeth Ann Peterson (argued), J. Brett Grosko, J. David
Gunter II, and Andrew C. Mergen, Attorneys, Appellate
Section, Environment and Natural Resources Division; Sam
Hirsch, Acting Assistant Attorney General, United States
Department of Justice, Washington, D.C.; Diane Hoobler and
Brian Perron, Of Counsel, Office of the Solicitor, United
States Department of Justice, Portland, Oregon, for
Defendants-Appellees.
Scott W. Horngren (argued) and Rob Molinelli, American
Forest Resource Council, Portland, Oregon, for Intervenors-
Defendants–Appellees.
OPINION
RAWLINSON, Circuit Judge:
This case arises from a dispute over scientific
methodology. Cascadia Wildlands and other environmental
groups (Cascadia) appeal from the district court’s denial of
their motion seeking to enjoin the Douglas Fire Complex
Recovery Project (Recovery Project) in the southern Oregon
Klamath Mountains. Cascadia specifically challenges the
biological opinion issued by the United States Fish and
Wildlife Service (the Service). Because Cascadia has not
demonstrated a likelihood of success on the merits, we affirm.
4 CASCADIA WILDLANDS V. THRAILKILL
I. BACKGROUND
A. The Recovery Project
The Douglas Complex Fire burned approximately 48,000
acres of federal and non-federal land in Oregon’s Klamath
Mountains. In response, the Medford District of the Bureau
of Land Management (Bureau) initiated the Recovery Project
aimed at salvaging burned acreage. The Bureau completed a
Douglas Complex Fire Recovery Project Environmental
Assessment, and solicited public comment, which Cascadia
timely provided. Subsequently, the Bureau issued a Record
of Decision and Finding of No Significant Impact approving
the Douglas Complex Fire Recovery Project. This finding
authorized the salvage logging of approximately 1,600 acres
of fire-killed or injured trees, including hazard tree removal
(to which Cascadia does not object), and logging of interior
forests for economic benefit. The Bureau also consulted with
the Service, after conducting a biological assessment and
determining that the Recovery Project “may affect and is
likely to adversely affect” the Northern Spotted Owl and its
critical habitat. The Service in turn issued a biological
opinion, which concluded in part:
[T]he proposed Project is likely to
incidentally take 14 adult and up to 10 young
spotted owls at seven sites. The take is in the
form of harm caused by habitat destruction or
degradation via timber harvest1 of up to 33
acres of [nesting, roosting, and foraging]
habitat and 1,049 acres of [post-fire foraging]
1
The referenced timber sales include Rogue Cow, Burnt Rattler, and
Rock Star.
CASCADIA WILDLANDS V. THRAILKILL 5
habitat that is likely to significantly disrupt
the breeding, feeding, and sheltering behavior
of these spotted owls to an extent that causes
injury or death.
Nevertheless, the biological opinion concluded that the
Recovery Project was “not likely to result in jeopardy to the
species or destruction or adverse modification of critical
habitat.”2
B. District Court Decision
The district court denied Cascadia’s motion for a
preliminary injunction, finding that Cascadia failed to
adequately establish that it was likely to succeed on the
merits, that there were “serious questions” going to the
merits, or that irreparable harm to the spotted owl was likely.
1. Barred Owls’ Effect on the Northern Spotted Owl
Cascadia’s primary argument focused on barred owls,
which are predators of the Northern Spotted Owl. Cascadia
contended that when barred owls are present, Northern
Spotted Owls are less likely to respond to survey calls.3
Cascadia submitted that the Service failed to account for this
possibility and “underestimated the number of spotted owls
2
The logging operations commenced nearly one year ago. During oral
argument, the intervenors estimated that approximately 33 acres have
already been felled.
3
Survey calls are attempts made by scientific surveyors to
observe/locate the Northern Spotted Owl in its habitat. Typically, survey
calls are verbal in nature, with an anticipated audible response from any
owls that are present.
6 CASCADIA WILDLANDS V. THRAILKILL
sites by relying on false no occupancy determinations.”
Cascadia Wildlands v. Thrailkill, 49 F. Supp. 3d 774, 779 (D.
Or. 2014) (internal quotation marks omitted).
The court disagreed with Cascadia’s contention that the
Service’s no jeopardy conclusion was arbitrary and
capricious, finding that the Service adequately
“acknowledge[d] and account[ed] for the potential impact of
barred owls on [spotted owl] detectability . . . .” Id. The
court observed that the biological opinion specifically
referenced the presence of barred owls and the effect of
barred owls’ presence.
The court found that the Service utilized the best available
scientific information–a series of long-term and uniform
Bureau surveys. The consistent nature of the surveys
provided surveyors with accurate site locations and
movement patterns of the owl in the area of the proposed
action. The Service also recommended that the Bureau
continue the survey process during the upcoming survey
season to further inform project planning. Cascadia did not
assert that the Service failed to identify the best available
scientific information, and did not cite alternative occupancy
data. The court found that the Service’s approval of the
salvage project was not arbitrary, capricious, or otherwise in
violation of the law.
2. Wildfire’s Effect on Northern Spotted Owl Habitat
Cascadia asserted that the best available scientific data
suggests that following a wildfire, the Northern Spotted Owl
CASCADIA WILDLANDS V. THRAILKILL 7
expands its core areas and home ranges,4 including roosting
and foraging sites. As a result, the required habitat area
would also increase.
The court found that the record did not support Cascadia’s
contention that the Service failed to consider this data. The
court determined that the Service “fully considered the
possibility” that the spotted owl may have expanded or
shifted its core-use areas and home ranges post-fire.
Although Cascadia failed to produce any evidence that the
home ranges actually did expand, the Service examined and
analyzed a variety of data from the study area to locate, to its
best estimation, the sites where shifts may have occurred.
The court concluded that the one study Cascadia cited did
not support Cascadia’s argument. Indeed, that study found no
significant differences between core-use areas and home
ranges in and around fire-affected areas. The court observed
that the Service examined home range circles that were twice
as large as those described in the cited study, and core-use
areas that were four times the size of those in the study.
Thus, the court found the Service’s methodology appropriate
to evaluate any potential shifts in home range due to
wildfires.
The court was not swayed by Cascadia’s other
documentary evidence. The court concluded that an email
from a Bureau official discussing movement of a single owl
due to the presence of a barred owl was not evidence of
expansion or shifting of ranges due to the Douglas Complex
4
Home range is the area covered in the normal activities of feeding,
mating, and nurturing. Areas subject to concentrated use, usually around
the nest site and favored foraging areas, are core areas.
8 CASCADIA WILDLANDS V. THRAILKILL
Fire. Moreover, the Bureau was aware of and tracked the
single owl, completely accounting for its movement.
Similarly, an internal Service memorandum suggesting that
some owls could move because of the new conditions created
by the Douglas Complex Fire did not undermine the Service’s
analysis. The Service anticipated and accounted for these
potential shifts by surveying larger home range and core-use
areas and by using long-term, intensive spotted owl
demographic studies on the action area. With this data, the
Service identified spotted owls at eight of fourteen sites that
could potentially shift. Because the Service “adequately and
lawfully accounted for the effect of wildfire on spotted owl
site locations,” the court concluded that the Service’s
decisions regarding owl habitat were not arbitrary, capricious,
or an abuse of discretion.
3. Endangered Species Act Procedural Requirements
Cascadia argued that the Service failed to comply with the
procedural requirements of the Endangered Species Act
because it did not: 1) assess the effects of the proposed action
on six known spotted owl sites that overlap the planning area,
but not the salvage units; 2) explain why it used two different
methods for assessing effects to the species; and
3) consistently apply its effects analysis methodologies.
The court rejected Cascadia’s arguments, finding that the
Service appropriately assessed the sites around the spotted
owl nesting areas and appropriately defined the action area to
include the home ranges of known spotted owl sites that
could be impacted. Of the 45 historical nest sites within the
action area, only 39 would be affected by any salvage
treatment or road/landing construction work. Of the six sites
that overlapped the action area, none of them would be
CASCADIA WILDLANDS V. THRAILKILL 9
affected by the habitat modifications in Recovery Project
areas. Cascadia did not contend otherwise. Rather, Cascadia
argued that the Service miscalculated the nesting, roosting,
and foraging coverage at the home range and core-use areas.
However, as the court noted, the calculations urged by
Cascadia were guidelines rather than fixed formulas.
In addition, the Service took into consideration other site-
specific factors, beyond the amount of remaining nesting,
roosting, and foraging habitat, including: 1) the post-fire
condition of the habitat; 2) the amount of post-fire foraging
habitat left or slated for removal and its proximity to the
critical habitat; 3) owl occupancy in the action area; and
4) other abiotic factors like stream distance, elevations, and
slope positions. The Service also evaluated the relative
habitat suitability to determine owl occupancy/viability of an
area. Areas that were unlikely to be affected by the Recovery
Project were to be left relatively intact, thereby supporting a
higher level of site occupancy and habitat fitness potential.
Despite Cascadia’s contentions that several sites were
occupied by the Northern Spotted Owl, the record surveys
proved otherwise.
The court rejected Cascadia’s argument that the Recovery
Project will remove more than minimal post-fire foraging at
two sites. It also rejected Cascadia’s contention that the
Service’s “not likely to adversely affect” determination was
arbitrary and capricious. Mindful of the deference due to the
Service on scientific matters, the court declined to substitute
Cascadia’s definition of “minimal” for that employed by the
Service. The court explained that post-fire habitat must be
evaluated in relationship to the remaining habitat. For
example, one site was slated to have a total of 44 acres of
post-fire foraging land removed from the home range, but the
10 CASCADIA WILDLANDS V. THRAILKILL
areas most impacted were in a low relative habitat suitability
area. Only approximately 0.7 acres of the total post-fire
foraging land would be removed from the core-use area. For
another site, only 25.5 acres of post-fire foraging land would
be removed from the home range(s), and none from the core-
use area(s). The court determined that the Service credibly
determined that the proposed post-fire foraging removals
were “minimal” in nature and that the Recovery Project was
not likely to adversely affect the spotted owl at the respective
sites.
Finally, the court was not convinced by Cascadia’s
contention that the Service inconsistently applied its
methodology to determine when a “take” had transpired at a
respective spotted owl site.5 The Service had concluded that
spotted owls were not likely to occupy the site where the “no
take” determination was made, but were likely to occupy the
site where the “take” determination was made. The court
concluded that the Service’s rationale was not arbitrary,
capricious, or an abuse of discretion.
4. Recovery Plan for the Northern Spotted Owl
Cascadia’s final argument regarded what it perceives to
be an inconsistency between the Service’s determination that
the Project would not jeopardize the spotted owl and the
recovery measures identified in the Service’s 2011 Northern
Spotted Owl Recovery Plan (Recovery Plan).
5
A “take” is defined under the Endangered Species Act as “to harass,
harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to
attempt to engage in any such conduct.” 16 U.S.C. § 1532(19).
CASCADIA WILDLANDS V. THRAILKILL 11
In 2011, the Service devised the Recovery Plan for the
spotted owl population. The Recovery Plan included various
Recovery Actions. Recovery Actions are “near-term
recommendations to guide the activities needed to accomplish
the recovery objectives and achieve the recovery criteria such
that a species may be delisted from [Endangered Species Act]
protection.” Id. at 786 (citation and internal quotation marks
omitted).
Recovery Action 10 instructs agencies to “[c]onserve
spotted owl sites and high value spotted owl habitat to
provide additional demographic support to the spotted owl
population. The intent of this recovery action is to protect,
enhance, and develop habitat in the quantity and distribution
necessary to provide for the long-term recovery of spotted
owls . . . .” Id. (citation omitted).
Recovery Action 12 directs that “[i]n lands where
management is focused on development of spotted owl
habitat, post-fire silvicultural activities should concentrate on
conserving and restoring habitat elements that take a long
time to develop (e.g., large trees, medium and large snags,
downed wood). . . .” Id. (citation omitted).
The court initially reasoned that Cascadia’s claims
regarding Recovery Actions 10 and 12 must fail because
recovery plans do not have the force of law, a point Cascadia
conceded at oral argument in the district court. Pursuant to
the Endangered Species Act, the Service’s jeopardy analysis
should consider whether a particular action “is reasonably
likely to appreciably reduce the likelihood of both survival
and recovery of a listed species. . . .” Id. at 787 (citing
50 C.F.R. § 402.02). The court explained that the jeopardy
analysis is not focused on whether the “federal action would
12 CASCADIA WILDLANDS V. THRAILKILL
itself implement or bring about recovery[,]” and thus, the
court rejected Cascadia’s attempt to conflate jeopardy with
recovery. Id.
The court also found that the biological opinion was
consistent with Recovery Actions 10 and 12. Consistent with
Recovery Action 10, the Bureau and the Service examined
the 39 known affected sites and for the top tier of the
identified sites, avoided and mitigated Recovery Project
impacts by excluding over 800 acres of post-fire foraging
land from salvage activity. The Bureau avoided road and
landing construction within the high priority spotted owl
core-use areas. The Bureau concentrated its salvage activities
on spotted owl sites with established non-occupancy results
for several years prior to the fire. In sum, the Bureau
mitigated the potential adverse effects to the spotted owl and
its habitat, consistent with Recovery Action 10.
The court similarly concluded that the biological opinion
discussed and properly implemented Recovery Action 12.
The Bureau excluded any acres that were subject to low
severity fire in the areas allocated for salvage activity, as
these sites were likely to be frequented by the spotted owl.
This exclusion left a significant portion of action area land
with both burned and “green legacy features” (e.g., snags,
downed wood, etc.), which is important to the spotted owl’s
development and future nesting, roosting, and foraging
habitat. Id. at 788. Conversely, approximately 25 percent of
the area within the fire perimeter was burned by medium to
high severity fire, and within this smaller area only eight
percent is subject to harvest. The Bureau also “took special
snag[-]related precautions” with regard to the areas set for
harvest. Id.
CASCADIA WILDLANDS V. THRAILKILL 13
The court denied Cascadia’s motion for a preliminary
injunction after considering all arguments presented by the
parties. Cascadia filed a timely appeal, and a motion in the
district court for an injunction pending appeal. Despite the
court’s concern that it lacked jurisdiction to grant the relief
requested by Cascadia, it proceeded to address the motion on
its merits. The court explained that Cascadia was asking the
court to reconsider its previous order denying Cascadia’s
motion for a preliminary injunction, as Cascadia reiterated
many of the same arguments that were previously submitted
to the court. Ultimately, the court found that Cascadia failed
to satisfy its burden to prove that: 1) it was likely to succeed
on the merits; 2) it was likely to suffer irreparable harm in the
absence of injunctive relief; 3) the balance of equities tipped
in its favor; and 4) an injunction was in the public interest.
As in its previous order, the court found that the biological
opinion, which was at the center of Cascadia’s argument, was
“thorough, reasoned, and reflective of an in-depth analysis of
the issues pertaining to the impact of the Recovery Project on
the spotted owl.” Order Denying Pl. Mot. for Injunction
Pending Appeal, p. 4, Oct. 14, 2014, ECF No. 33.
II. STANDARD OF REVIEW
We review a district court’s denial of a preliminary
injunction for an abuse of discretion. See Alliance for the
Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011).
Our review is “limited and deferential.” Nat’l Wildlife Fed’n
v. Nat’l Marine Fisheries Serv., 422 F.3d 782, 793 (9th Cir.
2005) (per curiam) (citation omitted). We will reverse only
if the district court committed an abuse of discretion, or an
error of law, or made a clearly erroneous factual finding. See
id. We defer to the expertise of the consulting agency on
14 CASCADIA WILDLANDS V. THRAILKILL
matters of science. Conservation Cong. v. Finley, 774 F.3d
611, 620 (9th Cir. 2014).
III. DISCUSSION
Section 7 of the Endangered Species Act directs that
federal agencies conserve species listed as endangered or
threatened, and whenever a federal action could affect an
endangered or threatened species, the agency involved must
consult the service with jurisdiction over the relevant listed
species. See 16 U.S.C. § 1536(a)(3). Here, the Fish and
Wildlife Service was the appropriate consulting agency
because it is responsible for administering the statute with
respect to terrestrial wildlife. See 50 C.F.R. § 402.01(b); see
also Pyramid Lake Paiute Tribe of Indians v. U.S. Dep’t of
the Navy, 898 F.2d 1410, 1415 n.10 (9th Cir. 1990) (noting
that the National Marine Fisheries Service administers the
Endangered Species Act only as to marine species and
anadromous fish listed in 50 C.F.R. §§ 222.23(a) and 227.4);
Building Industry Ass’n of the Bay Area v. U.S. Dep’t of
Commerce, 792 F.3d 1027, 1029 (9th Cir. 2015). Pursuant to
this directive, the Service issued a biological opinion
examining the required factors, such as the current status of
the listed species, its critical habitat, and effects of the
proposed action. The Service employed several
methodologies to examine the effect of the proposed action
on the spotted owl, and ultimately determined that there was
no jeopardy and no adverse modification to the spotted owl’s
critical habitat from the proposed action.
Cascadia concedes that the Service identified the relevant
scientific data but argues that compliance with the
Endangered Species Act requires more than merely restating
the scientific data. Cascadia contends that the Service did not
CASCADIA WILDLANDS V. THRAILKILL 15
actually apply the scientific data in preparing its biological
opinion, thereby violating the requirements of the Endangered
Species Act. As outlined above, Cascadia contends that the
Service failed to apply the best available science regarding:
1) the effect of barred owls on detecting the presence of
spotted owls; 2) the effect of wildfires on spotted owl habitat
and home range; and 3) Recovery Actions 10 and 12. The
district court acted within its discretion when it determined
that Cascadia failed to show a likelihood of succeeding on the
merits of these contentions.
A. Barred Owls’ Effect on the Spotted Owl
The record suggests that the predatory barred owl is a
threat to the spotted owl, and that when it is present there is
a potential adverse impact on the detectability of the spotted
owl.
The Service used several “long term and consistent”
Bureau surveys to delineate the study area, which included
the respective action area, to ascertain the location(s) of the
spotted owl. Cascadia Wildlands, 49 F. Supp. 3d at 779.
These surveys recognized the potential impact barred owls
have on the efficacy of spotted owl surveying, and the
Service acknowledged and incorporated the survey findings
into the biological opinion. The biological opinion observed:
“Evidence that northern spotted owls were responding less
frequently during surveys led the Service and its many
research partners to update the northern spotted owl survey
protocol. . . .” Cascadia does not dispute that the Service
cited the best available science. Rather, Cascadia contends
that the Service did not actually use this science to reach its
conclusion regarding the lack of jeopardy. However,
Cascadia’s mere disagreement with the result of the
16 CASCADIA WILDLANDS V. THRAILKILL
biological opinion does not mean that the Service failed to
use this scientific data. See United States v. Lewis, 611 F.3d
1172, 1180 (9th Cir. 2010). The record reflects that the
Service indeed relied upon the data of several surveys from
an array of surveyors regarding the effect that barred owls
have on the spotted owl.
We give wide latitude to an agency to determine what
constitutes the best scientific and commercial data available,
as “[t]he 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. . . .” Conservation
Cong., 774 F.3d at 620 (citation and internal quotation marks
omitted). In view of the deference owed to the agency’s
determination, and the record evidence of reliable data, the
district court’s rejection of Cascadia’s challenge was not an
abuse of discretion, legally erroneous, or factually erroneous.
See Nat’l Wildlife Fed’n, 422 F.3d at 793.
B. Wildfire’s Effect on the Spotted Owl
As with Cascadia’s previous argument, the record does
not support a finding that the Service failed to use the best
available scientific information regarding the effect the
wildfire had on the spotted owl’s habitat use, or a finding that
the Service’s conclusions were arbitrary. The Service
considered the possibility that spotted owls shifted habitat
locations post-fire, specifically their core-use areas and home
ranges. The Service simultaneously evaluated the long-
studied pre-fire habitat conditions of the spotted owl sites to
establish what post-fire habitat conditions could support
spotted owl-occupied core-use areas. The biological opinion
expressly addressed the effects of wildfire, observing:
CASCADIA WILDLANDS V. THRAILKILL 17
Where activity centers were affected by fire
. . . but sufficient habitat remains in the home
range . . . , site fidelity may cause spotted
owls to increase the size of their home ranges
or shift locations to encompass the best
available habitats rather than vacate the
burned site . . . Thus, a shift is defined as the
condition where the area is presumably still
functional and considered occupied, but the
core[-]use area may move to the best available
habitat immediately adjacent to the prior
activity center or to another location in
suitable habitat within the immediate area,
presumably within the pre-fire home range.
(Italics omitted).
Contrary to Cascadia’s contentions, the Service
referenced scientific reports that it consulted to help inform
its conclusion.
Although the record evidence establishes the possibility
of expansion of the spotted owl’s home range post-fire, the
biological opinion explicitly acknowledged that because post-
fire conditions examined in the scientific literature were
“highly variable . . . and not directly comparable to one
another,” these studies could not be used in a singular fashion
to determine post-fire spotted owl occupancy. Accordingly,
the Service “relie[d] on professional judgment and
interpretation of [the] best available information, including
pre- and post-fire habitat conditions in the action area, data in
the literature on spotted owl habitat use and occupancy
following . . . post-fire forest management practices, and . . .
18 CASCADIA WILDLANDS V. THRAILKILL
abiotic factors such as distance to streams, slope position,
elevation and aspect. . . .”
Nevertheless, three scientific studies from 1998, 2007,
and 2011 all indicated that when spotted owl site fidelity has
been affected by fire, the spotted owl may increase its home
range or shift locations for better nesting, roosting, and
foraging opportunities. In the 1998 study, two spotted owl
home ranges were surveyed before and up to three years after
the 1994 wildfires in the respective areas. For both home
ranges, spotted owl habitat use shifted toward unburned
habitat, but some lightly/moderately burned habitat was also
used.
As observed by the district court, the Service analyzed a
1.3 mile radius home range and was able to evaluate previous
spotted owl response and movement patterns in concert with
post-fire habitat conditions. The Service’s own evaluation
and the other available scientific data amply support the
conclusion that the spotted owl may shift or expand its habitat
post-fire, thus supporting the Service’s no jeopardy
determination.
The biological assessment documented approximately 45
owl sites within the action area, with 39 sites slated for
salvage treatment in their home ranges. The Service
adequately addressed the 39 sites that may be affected by the
Recovery Project, explaining that the home ranges of six of
these sites overlap with the action area, but the record
suggests that none of these sites would be adversely affected
by the Recovery Project.
Based on the spotted owl home range and core-use areas,
the Service regularly evaluated recovery projects based on the
CASCADIA WILDLANDS V. THRAILKILL 19
potential to modify the respective habitat and the degree of
potential modification. Given the best available science, the
Service explained that it would evaluate a recovery project
based on a 40 percent nesting, roosting and foraging home
range and a 50 percent nesting, roosting and foraging core-
use area. Post-Recovery Project habitat results indicate that
these estimates were reliable. These percentages represent
estimates, and are just one factor that the Service factored
into its analysis. The Service also examined several other
site-specific factors, including pre-and post-fire habitat
conditions, habitat suitability, and abiotic factors. Despite
Cascadia’s contention otherwise, the Service consulted and
applied a multitude of scientific data to conclude that
proceeding with the salvage project would result in no
jeopardy to the spotted owl.
Importantly, the salvage project is slated to affect less
than 10 percent of acreage located on federal land. The
Douglas Complex Fire burned approximately 48,000 acres of
federal and non-federal land, with a salvage harvest of around
1,276–1,612 acres of fire-affected trees. Further, post-fire
nesting, roosting and foraging habitat disturbance is limited,
such that less than 20 percent is affected from the home range
and core-use areas, and scientific data suggests that there was
non-occupancy in several of those sites before the fire. To
ensure that the habitat is minimally disturbed, the Bureau
implemented restrictions on salvage damage by:
1) precluding harvest on any of the low severity burned areas;
2) limiting salvaging in core-use areas; 3) retaining large
trees, snags and downed wood; and 4) reforestation of the
burned units. Given the Service’s cautious, conservative and
data-guided approach to salvaging, although the spotted owl
may increase its range post-fire, the Service’s no jeopardy
determination complied with both the Endangered Species
20 CASCADIA WILDLANDS V. THRAILKILL
Act and the Administrative Procedure Act. See Conservation
Cong., 774 F.3d at 620; see also Ariz. Cattle Growers’ Ass’n
v. U.S. Fish & Wildlife, 273 F.3d 1229, 1236 (9th Cir. 2001)
(explaining that an administrative decision withstands
scrutiny under the Administrative Procedure Act if the
decision is not “arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law.”) (quoting 5 U.S.C.
§ 706(2)(A)).
Finally, Cascadia’s reliance on Blue Mountains
Biodiversity Project v. Blackwood, 161 F.3d 1208, 1214 (9th
Cir. 1998) is unavailing. In that case, we faulted the Service
for advancing an environmental assessment that “contain[ed]
virtually no references to any material in support of or in
opposition to its conclusions . . . .” Id. Conversely, in this
case the Service cited to several lengthy scientific reports to
support its conclusions regarding the potential shift patterns
of the spotted owl in a post-fire landscape. As previously
noted, it is not within the province of a reviewing court to
substitute its judgment for that of the respective agency as
long as the agency used adequate and reliable data. See
Conservation Cong., 774 F.3d at 620. We affirm the district
court’s ruling rejecting Cascadia’s argument to the contrary.
See Nat’l Wildlife Fed’n, 422 F.3d at 793.
C. Recovery Actions 10 and 12
In an argument similar to that rejected in Conservation
Congress, Cascadia contends that the Service failed to
adequately utilize the best scientific information necessary to
ensure spotted owl recovery when evaluating the Project and
rendering its jeopardy determination. According to Cascadia,
the Recovery Plan represents the best available science,
which the Service was either obligated to follow or explain its
CASCADIA WILDLANDS V. THRAILKILL 21
departure from when rendering the jeopardy determination.
Like the district court, we disagree.
Pursuant to Section 4 of the Endangered Species Act, the
Service created a Recovery Plan for the spotted owl with the
avowed function “to protect, enhance and develop habitat in
the quantity and distribution necessary to provide for the
long-term recovery of spotted owls. . . .” The purpose of the
Recovery Plan is evident—promote recovery of the spotted
owl.6 Although they are not necessarily mutually exclusive,
recovery and jeopardy are two distinct concepts.
The biological opinion properly focused on jeopardy
rather than monitoring for perfect compliance with the
recovery plans. See Conservation Cong., 774 F.3d at 620.
“[D]eclining to adopt particular recommendations in a
recovery plan or a study—neither of which is binding on an
agency—does not constitute failing to consider them under
50 C.F.R. § 402.16. . . .” Id. In any event, the biological
opinion is consistent with Recovery Action 10 because the
focus in both is on conserving spotted owl sites and habitat to
support the spotted owl population.
The same is true for Recovery Action 12, with its focus
on the development of post-fire habitat and restoration of
habitat elements that require significant time to develop. The
Recovery Project will provide high retention of snags and
coarse woody debris in the spotted owl’s critical habitat.
Thus, the largest snags, the richest woody debris, and other
green legacy features will be retained and aggregated to
6
It is worth noting that recovery plans are not binding, and Cascadia
conceded this point at oral argument before the district court. See
Conservation Cong., 774 F.3d at 620.
22 CASCADIA WILDLANDS V. THRAILKILL
provide short and long-term benefits to the spotted owl. We
affirm the district court’s rejection of Cascadia’s claim that
the Service’s jeopardy determination was inconsistent with
the Recovery Plan and therefore deficient. See Nat’l Wildlife
Fed’n, 422 F.3d at 793.
In sum, the district court’s conclusion that Cascadia failed
to prove a likelihood of success on the merits was supported
legally and factually. Because the district court acted within
its discretion in reaching that conclusion, we need not
consider the remaining preliminary injunction factors. See
DISH Network Corp. v. F.C.C., 653 F.3d 771, 776-77 (9th
Cir. 2011).
IV. CONCLUSION
The Douglas Complex Fire destroyed approximately
48,000 acres of forest in Oregon. In response, the Bureau
created the Recovery Project to salvage remaining spotted
owl habitat and optimize the growth of new habitat. Finding
that the Service’s conclusions were supported by the best
available science and were not arbitrary or capricious, the
district court denied Cascadia’s motion for a preliminary
injunction. Given our limited review of the denial of a
preliminary injunction, we conclude that the district court
acted within its discretion. The denial of injunctive relief was
legally sound and supported by the record.
AFFIRMED.