Conservation Congress v. United States Forest Service

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CONSERVATION CONGRESS, No. 12-16452
Plaintiff-Appellant,
D.C. No.
v. 2:11-cv-02605-
LKK-EFB
UNITED STATES FOREST SERVICE ;
UNITED STATES FISH AND WILDLIFE
SERVICE , OPINION
Defendants-Appellees,
SIERRA PACIFIC INDUSTRIES,
Intervenor-Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Lawrence K. Karlton, Senior District Judge, Presiding
Argued and Submitted
January 8, 2013—Pasadena, California
Filed June 13, 2013
Before: Alex Kozinski, Chief Judge, M. Margaret
McKeown, and Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.
2 CONSERVATION CONGRESS V . U.S. FOREST SERV .
SUMMARY*
Environmental Law
The panel affirmed the district court’s order denying a
motion for a preliminary injunction which sought to enjoin a
federal agency’s authorization of a timber sale known as the
Mudflow Vegetation Management Project in the Shasta-
Trinity National Forest in California.
Plaintiff alleged that federal agencies failed to adequately
evaluate the effects of the Mudflow Project on the Northern
Spotted Owl’s critical habitat in violation of the Endangered
Species Act. The panel held that the appeal was not rendered
moot by a new 2013 habitat designation, and subsequent
reinstatement of informal consultation between the United
States Forest Service and the Fish and Wildlife Service. The
panel also held that the district court did not abuse its
discretion when it determined that plaintiff failed to show a
likelihood of success on the merits as to its Endangered
Species Act claim that federal defendants arbitrarily or
capriciously approved the Mudflow Project.
COUNSEL
James J. Tutchton (argued), Tutchton Law Office LLC,
Centennial, Colorado, for Plaintiff-Appellant.
*
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 . U.S. FOREST SERV . 3
Vivian H.W. Wang (argued); Ignacia S. Moreno, Assistant
Attorney General; Robert P. Williams; Mary Hollingsworth;
E. Ann Peterson, United States Department of Justice,
Environmental & Natural Resources Division, Washington,
D.C.; Sarah Birkeland, Office of the General Counsel, United
States Department of Agriculture, Washington, D.C.;
Veronica Rowan, Office of the Solicitor, United States
Department of the Interior, Washington, D.C., for
Defendants-Appellees.
Julie A. Weis (argued), Haglund Kelley Jones & Wilder LLP,
Portland, Oregon, for Defendant-Intervenor-Appellee.
OPINION
M. SMITH, Circuit Judge:
This case arises from a federal agency’s authorization of
a timber sale, known as the Mudflow Vegetation
Management Project (Mudflow Project or Project), and its
potential effects on the Northern Spotted Owl’s (Owl) critical
habitat. Plaintiff-Appellant Conservation Congress (CC)
sued federal Defendants-Appellees,1 alleging that they had
failed to adequately evaluate the effects of the Mudflow
Project on the Owl’s critical habitat, in violation of section
7(a)(2) of the Endangered Species Act (ESA), 16 U.S.C.
1
Defendants-Appellees are United States Forest Service (Forest Service)
and United States Fish & W ildlife Service (FW S) (collectively,
Defendants).
4 CONSERVATION CONGRESS V . U.S. FOREST SERV .
§ 1536(a)(2), among other claims.2 CC unsuccessfully sought
to enjoin the Mudflow Project based on its ESA claim. CC
now appeals the district court’s denial of its motion for a
preliminary injunction. We conclude that the district court
did not abuse its discretion when it determined CC failed to
show a likelihood of success on the merits as to its ESA claim
that Defendants arbitrarily or capriciously approved the
Mudflow Project. Accordingly, we affirm.
FACTS AND PRIOR PROCEEDING
CC asserts two claims under ESA section 7(a)(2) against
Defendants. CC alleges that: (1) the Forest Service’s
biological assessment (BA) for the Mudflow Project failed to
adequately evaluate the Project’s potential effects on the
Owl’s critical habitat, in violation of 16 U.S.C. § 1536 and 50
C.F.R. § 402.12(a); and (2) the FWS issued an arbitrary
concurrence letter accepting the BA’s conclusion, in violation
of 16 U.S.C. § 1536(a)(2) and 50 C.F.R. § 402.14(a).
A. Statutory Framework
The Endangered Species Act of 1973, 16 U.S.C. §§ 1531,
et seq., “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 quotes omitted); see
also 16 U.S.C. § 1531. To further this aim, ESA section
7(a)(2) imposes both substantive and procedural duties on
certain federal agencies. Forest Guardians v. Johanns,
450 F.3d 455, 457 (9th Cir. 2006).
2
CC also brought a claim under the National Environmental Policy Act
(NEPA), which is not at issue in this appeal.
CONSERVATION CONGRESS V . U.S. FOREST SERV . 5
Substantively, section 7(a)(2) requires federal agencies,
such as the Forest Service, to “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.” 16 U.S.C. § 1536(a)(2). Procedurally, before
initiating any action in an area that contains threatened or
endangered species, federal agencies must consult with the
FWS (for land-based species) or the National Marine
Fisheries Service (for marine species) to determine the likely
effects of any proposed action on species and their critical
habitat. Natural Res. Defense Council v. Houston, 146 F.3d
1118, 1126 (9th Cir. 1998); Forest Guardians, 450 F.3d at457 n.1. The ESA and its implementing regulations establish
a framework for such inter-agency consultation. The agency
proposing the action (action agency)—in this case, the Forest
Service—must independently determine whether the action
“may affect” a listed species or its habitat under the ESA.
50 C.F.R. § 402.14(a). If the answer is yes, “formal
consultation” with the appropriate consulting agency is
generally mandatory. 50 C.F.R. §§ 402.14(a)–(c). An action
agency may bypass formal consultation if it determines, and
the consulting agency agrees, that the proposed action “is not
likely to adversely affect any listed species or critical
habitat.” 50 C.F.R. § 402.14(b)(1). When that occurs, “the
consultation process is terminated, and no further action is
necessary.” 50 C.F.R. § 402.13(a). If, however, after this
“informal consultation,” the consulting agency disagrees that
the proposed action is not likely to have adverse effects, then
formal consultation is required. Medina Cnty. Envtl. Action
Ass’n v. Surface Transp. Bd., 602 F.3d 687, 693 n.8 (9th Cir.
2010); 50 C.F.R. § 402.14. In formal consultation, the
consulting agency must prepare a biological opinion that
6 CONSERVATION CONGRESS V . U.S. FOREST SERV .
advises the action agency as to whether the proposed action,
alone or “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).
B. The Northern Spotted Owl
The Northern Spotted Owl lives in old-growth and mature
forests that extend from southwestern British Columbia
through parts of Washington, Oregon, and California. The
FWS listed the Owl as a threatened species under the ESA
and designated 6.9 million acres of “critical habitat” for the
Owl in the early 1990s. 55 Fed. Reg. 26114 (June 26, 1990);
57 Fed. Reg. 1796 (Jan. 15, 1992). The ESA defines “critical
habitat” for a threatened or endangered species to mean areas
that are “essential to” or “essential for” the species’
conservation. 16 U.S.C. §§ 1532(5)(A)(i), (ii).3 The FWS
has divided the Owl’s critical habit into four components: (1)
nesting, (2) roosting, (3) foraging, and (4) dispersal. See
57 Fed. Reg. at 1797.
C. The Mudflow Project
The Mudflow Project is located on the Shasta-Trinity
National Forest, northeast of McCloud, California. The
Project area comprises approximately 13,830 acres of land,
3
The 2008 habitat rule for the Owl designated 29 units as critical habitat
for the Owl in W ashington, Oregon, and California, totaling
approximately 5.3 million acres. 73 Fed. Reg. 47326, 47352 (Aug. 13,
2008). The 2013 habitat rule increased the designation of the Owl’s
critical habit to approximately 9.6 million acres, to be consistent with
current conservation needs of the Owl, as described in the 2011 Revised
Recovery Plan for the Owl. 77 Fed. Reg. 71876, 71894 (Dec. 4, 2012).
CONSERVATION CONGRESS V . U.S. FOREST SERV . 7
and was developed to address several issues: declining forest
health due to tree root disease and overstocking, threat of
wildfire to nearby communities, and declining wet meadow
ecosystems. The Project’s proposed treatments include
thinning, sanitation and regeneration, and restoring wet
meadow ecosystems, among others. A total of 544 acres of
the Owl’s critical habitat are proposed for Project treatment.
D. Biological Assessment
On February 15, 2008, the Forest Service prepared a
biological assessment analyzing the potential effects of the
Mudflow Project on the Owl and its critical habitat. The BA
determined that the Mudflow Project area contains 510 acres
of suitable nesting/roosting habitat and 5,125 acres of suitable
foraging habitat, but that no Owls occupied the Project area.4
To evaluate whether a forest management project, such as
the Mudflow Project, is likely to adversely affect critical
habitat, the Forest Service applies a three-tier classification
system for “estimated degree of change”: degraded,
downgraded, and removed. “Degraded” means the treatment
will reduce habitat elements, “but not to the degree where
existing habitat function is changed.” “Downgraded” habitat
will not function in the capacity that existed before treatment,
but retains some habitat function. “Removed” means habitat
elements will be reduced to the degree that it no longer
functions as habitat for the species.
4
The BA was prepared before the 2008 habitat rule and thus applied the
1992 standard. FW S issued an updated concurrence in 2012 to account
for revisions to the critical habitat designation for the Owl.
8 CONSERVATION CONGRESS V . U.S. FOREST SERV .
According to the BA, the short-term effects of the
proposed treatments would “temporarily ‘degrade’ but . . . not
‘remove’” foraging habitat in designated critical habitat
within the Project area. But in the long-term, Project
treatments would improve forest health and resistance to
insects and disease, increase tree diameter by reducing inter-
tree competition, and encourage understory reproduction. In
sum, the BA determined that the Project would “temporarily
degrade[]” a total of 1,719 acres of the Owl’s suitable
foraging habitat within the Project area. No nesting/roosting
areas would be degraded, and no part of the Owl’s critical
habitat would be “downgraded” or “removed.” The BA
concluded that the Mudflow Project “may affect, but is not
likely to adversely affect,”5 the Owl or its critical habitat.
E. Informal Consultation and Concurrence
In April 2008, the Forest Service engaged in informal
consultation with the FWS. The FWS concurred with the
Forest Service’s determination that the Mudflow Project “is
not likely to adversely affect” the Owl or its critical habitat.
5
The conclusion “is not likely to adversely affect” is appropriate “when
effects on listed species are expected to be discountable, or insignificant,
or completely beneficial.” U.S. Fish & W ildlife Serv. & Nat’l Marine
Fisheries Serv., Endangered Species Consultation Handbook: Procedures
for Conducting Consultation and Conference Activities Under Section 7
of the Endangered Species Act 3-12 (1998) (hereinafter, ESA Handbook).
“Beneficial effects” means contemporaneous positive effects without any
adverse effects to the species”; “insignificant effects” pertain “to the size
of the impact and should never reach the scale where take occurs”; and
“discountable effects” are effects that are “extremely unlikely to occur.”
Id. at 3-12 (bolding removed).
CONSERVATION CONGRESS V . U.S. FOREST SERV . 9
In late 2011 and early 2012, the Forest Service engaged
in further consultation with the FWS regarding the Mudflow
Project, in light of new literature and additional updated
information. In February 2012, the FWS reconcurred with
the Forest Service that the Mudflow Project “may affect, but
is not likely to adversely affect designated critical habitat,”
given that (1) treatments were not proposed within nesting or
high-quality foraging habitat, and (2) 171 acres of treated
foraging habitat would retain its function. On June 7, 2011,
the Forest Service approved the Mudflow Project in its
record of decision, thereby ending the consultation process.
50 C.F.R. § 402.13(a).
In December 2012, while this appeal was pending, the
Forest Service reinitiated additional informal consultation
with the FWS regarding the potential effects of the Mudflow
Project on the Owl, in light of the 2013 revised habitat rule.
On April 22, 2013, the FWS issued a third concurrence letter
agreeing with the Forest Service’s determination that the
“Project may affect, but is not likely to adversely affect
designated critical habitat” for the Owl.
F. Procedural History
CC filed its original complaint on October 3, 2011,
seeking declaratory and injunctive relief against Defendants.
CC amended the complaint in March 2012, which Defendants
answered. On April 9, 2012, CC moved for a preliminary
injunction as to its ESA claim. The district court denied the
motion on June 19, 2012. CC timely appealed the district
court’s denial of its motion for preliminary injunction. A
week before oral argument, Defendants filed a Suggestion of
Mootness, seeking dismissal of the appeal because of recent
events.
10 CONSERVATION CONGRESS V . U.S. FOREST SERV .
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction under 28 U.S.C. § 1292(a)(1). We
review a district court’s denial of a preliminary injunction for
abuse of discretion. Earth Island Inst. v. Carlton, 626 F.3d
462, 468 (9th Cir. 2010). The abuse of discretion standard is
“limited and deferential,” and we may only reverse the
district court’s decision if it was based on an erroneous legal
standard or clearly erroneous findings of fact. Id. (quotes
omitted).
DISCUSSION
I. Mootness
In its Suggestion of Mootness, Defendants argue that a
new 2013 habitat designation, and subsequent reinstatement
of informal consultation between the Forest Service and the
FSW, render this appeal moot. We disagree. “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). Stated another way, a claim is moot
and must be dismissed if “an event occurs that prevents the
court from granting effective relief.” Id. Defendants, as the
party seeking dismissal based on mootness, “bear[] a heavy
burden,” as they “must show that it is absolutely clear that the
allegedly wrongful behavior will not recur if the lawsuit is
dismissed.” Rosemere Neighborhood Ass’n v. EPA, 581 F.3d
1169, 1173 (9th Cir. 2009) (citation and quotes omitted); see
also Forest Guardians, 450 F.3d at 461.
Defendants fail to meet this burden. As the April 2013
FWS concurrence letter filed by Defendants reveals,
Defendants continue precisely the behavior CC challenges—
CONSERVATION CONGRESS V . U.S. FOREST SERV . 11
approving the Mudflow Project without conducting a
cumulative effects analysis. This appeal is therefore not
moot.
II. Likelihood of Success on the Merits
A preliminary injunction is an “extraordinary remedy”
that requires the movant to show that: (1) it is likely to
succeed on the merits; (2) it is likely to suffer irreparable
harm if the preliminary injunction is not granted; (3) the
balance of equities tips in its favor; and (4) an injunction is in
the public’s interest. Winter v. Natural Res. Def. Council,
Inc., 555 U.S. 7, 20, 22 (2008). Here, the district court denied
CC’s motion for preliminary injunction on the basis that it
had not established a probability of success on the merits as
to its ESA claim.
The Administrative Procedure Act (APA), Pub. L. No.
79-404, 60 Stat. 237 (1946), sets forth additional
requirements to be considered when deciding whether CC is
likely to succeed on the merits as to its ESA claim. Earth
Island Inst., 626 F.3d at 468. Under the APA, a reviewing
court may only set aside an agency action that is “arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A). “A decision is
arbitrary and capricious only if the agency relied on factors
Congress did not intend it to consider, entirely failed to
consider an important aspect of the problem, or offered an
explanation 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.” Lands
Council v. McNair, 629 F.3d 1070, 1074 (9th Cir. 2010)
(quotes omitted). “Agency action is valid if the agency
considered the relevant factors and articulated a rational
12 CONSERVATION CONGRESS V . U.S. FOREST SERV .
connection between the facts found and the choices made.”
Id. (citation and quotes omitted). Moreover, when reviewing
scientific judgments and technical analyses within the
agency’s expertise, the reviewing court must be at its “most
deferential.” Id. (quoting Balt. Gas & Elec. Co. v. Natural
Res. Def. Council, Inc., 462 U.S. 87, 103 (1983)).
CC challenges the district court’s determination that it has
not established a probability of success on the merits as to its
ESA claim on two grounds. First, CC asserts that the district
court committed legal error by disregarding the purported
requirement that the Forest Service perform a “cumulative
effects” analysis during its informal consultation with the
FWS. Second, CC claims that the district court committed
clear factual error by ignoring evidence controverting
Defendants’ conclusion that the Mudflow Project would
“degrade” the Owl’s critical habitat, but not result in an
adverse effect.
A. Cumulative Effects under ESA
The Forest Service prepared a biological assessment and
engaged in informal consultation with the FWS to evaluate
the potential effects of the Mudflow Project on the Owl and
its critical habitat. CC argues that Defendants violated the
procedural requirements of ESA section 7(a)(2) by “failing to
analyze the cumulative effects of [Defendants’] multiple
allowances of degradation of critical habitation through the
Mudflow Project and in connection with other past, present,
and future, nearby logging projects.” This argument is
unavailing.
As a preliminary matter, CC’s argument is premised on a
misunderstanding of the term “cumulative effects” in the ESA
CONSERVATION CONGRESS V . U.S. FOREST SERV . 13
context. The ESA defines “cumulative effects” as “those
effects of future State or private activities, not involving
Federal activities, that are reasonably certain to occur within
the action area of the Federal action subject to consultation.”
50 C.F.R. § 402.02 (emphasis added); see also Medina Cnty.
Envtl. Action Ass’n, 602 F.3d at 694. Applied to the
Mudflow Project, cumulative effects are those stemming
from future state or private activities that are reasonably
certain to occur within the Project area. This definition only
pertains to ESA section 7 analyses and should not be
conflated with NEPA’s broader term “cumulative impact,”
which means “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; see also
Sierra Forest Legacy v. Sherman, 646 F.3d 1161, 1183 (9th
Cir. 2011).6 Nor, contrary to CC’s argument, is “cumulative
impact” (or cumulative effects) a shorthand for
“environmental baseline,” which means “past and present
impacts of all Federal, State, or private actions and other
human activities in the action area. . . .” 50 C.F.R. § 402.02;
see also ESA Handbook, at 4-22 (stating that cumulative
impact captures “a ‘snapshot’ of a species’ health at a
specified point in time.”). In sum, the terms “cumulative
effects,” “cumulative impact,” and “environmental baseline”
have distinct regulatory meanings under the ESA and NEPA.
6
In this case, the Forest Service prepared a cumulative effects analysis
of past, present, and reasonably foreseeable future actions under NEPA,
but that fact is of no help to CC because its NEPA claim is not at issue in
this appeal.
14 CONSERVATION CONGRESS V . U.S. FOREST SERV .
Moreover, CC complains that Defendants failed to
analyze the cumulative effects of other nearby federal
projects past, present, and future. But consideration of
federal projects, past projects, and projects outside the
Mudflow Project area exceed the scope of a cumulative
effects analysis, as defined under 50 C.F.R. § 402.02.
Additionally, in conducting an analysis of the effects of the
Mudflow Project on the Owl, the Forest Service considered
past effects by incorporating them into the baseline it used for
analysis. Thus, the baseline already appears to account for
the aggregate effects of past activities, while future federal
and private actions must withstand independent regulatory
scrutiny. In essence, CC demands that Defendants conduct a
more extensive, NEPA-like cumulative impacts analysis. But
NEPA and ESA call for different regulatory review, and we
must defer to the procedural mechanisms established by the
implementing agency. See Vt. Yankee Nuclear Power Corp.
v. Natural Res. Def. Council, Inc., 435 U.S. 519, 543 (1978)
(“Absent constitutional constraints or extremely compelling
circumstances the administrative agencies should be free to
fashion their own rules of procedure and to pursue methods
of inquiry capable of permitting them to discharge their
multitudinous duties.” (citations and quotes omitted)).
CC’s argument also fails because there is simply no
statutory mandate to consider cumulative effects during
informal consultation. We must uphold any reasonable
interpretation agencies give to ambiguous statutes they are
charged with administering. See Chevron, U.S.A., Inc. v.
Natural Res. Def. Council, 467 U.S. 837, 842–44 (1984).
Here, Congress has not “directly spoken” to the issue of
whether a cumulative effects analysis is required during
informal consultation under ESA section 7(a)(2). Id. at 842.
The statute only requires “consultation” with the appropriate
CONSERVATION CONGRESS V . U.S. FOREST SERV . 15
agency. 16 U.S.C. § 1536(a)(2). Under its implementing
regulations, FWS has clearly created an affirmative duty to
consider cumulative effects during formal consultation, but
there is no such duty during informal consultation. The
FWS’s “responsibilities during formal consultation” include
the formulation of a biological opinion that advises the action
agency as to whether or not the action, “taken together with
cumulative effects,” 50 C.F.R. § 402.14(g)(4), is “likely to
jeopardize the continued existence of a listed species or result
in the destruction or adverse modification of critical habitat,”
50 C.F.R. § 402.14 (h)(3).
In contrast, an informal consultation is defined as
“an optional process that includes all discussions,
correspondence, etc., between the Service and the Federal
agency or the designated non-Federal representative,
designed to assist the Federal agency in determining whether
formal consultation or a conference is required.” 50 C.F.R.
§ 402.13(a). Here, there is no mention of a cumulative effects
analysis. CC acknowledges as much, but provides no
statutory or regulatory provision, legislative materials, or
other relevant authority7—and we are aware of none—
supporting a duty to evaluate cumulative effects during
informal consultation. In addition, we cannot—as CC
requests—read section 402.13’s failure to address cumulative
7
CC relies on Pacific Coast Federation of Fishermen’s Associations,
Inc. v. National Marine Fisheries Service, 265 F.3d 1028 (9th Cir. 2001),
and National Wildlife Federation v. National Marine Fisheries Service,
524 F.3d 917 (9th Cir. 2008), for the general proposition that
consideration of cumulative effects under the ESA is crucial. These cases
are inapposite. They concern challenges to a biological opinion prepared
during formal consultation, and neither addressed the issue of whether an
agency must consider cumulative effects of a proposed action during
informal consultation.
16 CONSERVATION CONGRESS V . U.S. FOREST SERV .
effects as being equivalent to imposing a duty to analyze
them, especially when read in juxtaposition with 50 C.F.R.
§ 402.14, which creates the duty expressly. See Vt. Yankee
Nuclear Power Corp., 435 U.S. at 543; Earth Island Inst.,
626 F.3d at 472 (“Courts may not impose procedural
requirements not explicitly enumerated in the pertinent
statutes.” (citation and quotes omitted)); Wilderness Soc. v.
Tyrrel, 918 F.2d 813, 818 (9th Cir. 1990).
Likewise, in preparing its BA, the Forest Service was not
required to consider cumulative effects under the ESA. The
only relevant requirement is that a biological assessment
“determine whether any [endangered] species or [critical]
habitat are likely to be adversely affected by the action.” 50
C.F.R. § 402.12(a). The contents of a biological assessment
are at the “discretion” of the federal agency, “depend on the
nature of the Federal action,” and “may” include on-site
inspections of the affected area, experts views, literature
reviews, and analysis of alternate actions, as well as
“consideration of cumulative effects, and the results of any
related studies.” 50 C.F.R. § 402.12(f) (emphasis added); see
also Medina Cnty. Envtl. Action Ass’n, 602 F.3d at 699–700;
City of Sausalito v. O’Neill, 386 F.3d 1186, 1216 (9th Cir.
2004). Thus, under the plain meaning of 50 C.F.R.
§ 402.12(f), consideration of cumulative effects is permissive,
not mandatory. The district court correctly determined that
the Forest Service did not abuse its discretion in failing to
consider a factor that it was not required to consider in the
first place.
CONSERVATION CONGRESS V . U.S. FOREST SERV . 17
B. Evidence Controverting Defendants’ Conclusion
that the Mudflow Project Is Not Likely to
Adversely Affect the Owl
The district court also found that CC failed to show
Defendants acted arbitrarily and capriciously in determining
that the contemplated degradation from the Mudflow Project
would not amount to an “adverse” effect. CC argues that the
district court abused its discretion by ignoring contrary
evidence in FWS’s own concurrence letter regarding
proposed treatments.
First, CC observes that proposed treatments in the Owl’s
foraging habitat include thinning 22 acres to a basal area of
100–120 square feet per acre, whereas a basal area of
125–150 square feet per acre (or more) is needed to sustain
the Owl’s foraging habitat. But CC ignores the fact that no
single criterion determines the quality of foraging habitat.
The Owl’s foraging habitat is a variegated landscape that
primarily functions to provide food supply for survival and
reproduction. 73 Fed. Reg at 47346. Assessing the Owl’s
foraging habitat involves considering various forest structural
features and elements, such as canopy cover, tree size, basal
area, tree species composition, canopy layering, presence of
edges and small openings, landscape position, slope position,
distance to water, and proximity to nesting/roosting habitat,
among others. See id. In its concurrence letter, the FWS
concludes that “[c]onsistent with the high degree of
variability described in research publications, [its] criteria for
evaluating foraging habitat for spotted owls consists of a
range of stand conditions frequently used by owls rather than
a single threshold value.” Basal area is thus only one factor
in the calculus. The FWS further states that although most
studies suggest some degree of Owl preference for higher
18 CONSERVATION CONGRESS V . U.S. FOREST SERV .
basal areas (160–220 square feet per acre), a substantial
amount of foraging (44 percent) occurs within stands with
basal areas ranging from 80–160 square feet per acre.
It is unclear, therefore, from the totality of the factors
considered, that a thinning of 22 acres, out of a total of 408
acres of the Owl’s degraded foraging habitat, to a basal area
of 100–125 square feet per acre would necessarily mean that
the Owl’s total foraging habitat would be “adversely”
modified—which, in the regulatory context, means
appreciably diminished. See Butte Envtl. Council v. U.S.
Army Corps of Eng’rs, 620 F.3d 936, 948 (9th Cir. 2010)
(“[A]n adverse modification occurs only when there is a
direct or indirect alteration that appreciably diminishes the
value of critical habitat” (citation and quotes omitted)); ESA
Handbook, at 4-35 (defining “adverse modification” as “a
direct or indirect alteration that appreciably diminishes the
value of critical habitat for both the survival and recovery of
a listed species”). Even completely destroying 22 acres of
critical habitat does not necessarily appreciably diminish the
value of the larger critical habitat area. See Butte Envtl.
Council, 620 F.3d at 948 (“An area of a species’ critical
habitat can be destroyed without appreciably diminishing the
value of a critical habitat for the species’ survival or
recovery.”).
Second, CC notes that the proposed treatments also
include 46 acres of fuelbreak treatment. CC argues that 22
acres of thinning with sanitation, together with 46 acres of
shaded fuelbreak treatment (totaling 68 acres of treated area),
equals an “adverse effect.” But again, “adverse” effect is a
technical term referring to effects that appreciably diminish
habitat value. See Butte Envtl. Council, 620 F.3d at 948. CC
fails to explain how the alteration to 68 acres of the Owl’s
CONSERVATION CONGRESS V . U.S. FOREST SERV . 19
foraging habitat will appreciably diminish the Owl’s broader
foraging habitat. The Forest Service found that the Mudflow
Project would not “downgrade” (temporarily reduce habitat
functioning) or “remove” (render no longer functional) any
part of the Owl’s critical habitat. The Forest Service further
found that neither the Owls nor their nesting/roosting areas
would be affected. Only portions of the Owl’s foraging
habitat would be “degraded.” Given the totality of the
findings, Defendants reasonably concluded that the Mudflow
Project “may affect, but is not likely to adversely affect” the
Owl or its critical habitat. Under the APA’s deferential
standard of review, agency action is presumed to be valid if
there is a reasonable basis for the decision. Lands Council,
629 F.3d at 1074. Therefore, the district court did not abuse
its discretion in deferring to Defendants’ determination that
the Mudflow Project would not likely adversely affect the
Owl or its critical habitat, thus obviating the need for formal
consultation.
CONCLUSION
CC’s challenge to the district court’s denial of its
preliminary injunction is premised on a misunderstanding of
regulatory terms, an unsupported reading of a duty to
consider cumulative effects under ESA section 7(a)(2), and
selected portions of the record taken out of context. The
district court’s decision is affirmed.
AFFIRMED.