Home » Case Summaries » 2015 » Conservation Congress v. Finley, 774 F.3d 611 (9th Cir. 2014)

 
 

Conservation Congress v. Finley, 774 F.3d 611 (9th Cir. 2014)

 

Conservation Congress and the Environmental Protection Information Center (together, Conservation) brought an action against the United States Forest Service (USFS) and the United States Fish and Wildlife Service (FWS) alleging inadequate consideration of the Beaverslide Project’s effects on the Northern spotted owl (Strix occidentals caurina), a threatened species.[1] Conservation contended that USFS and FWS violated the Endangered Species Act (ESA)[2] and the National Environmental Policy Act (NEPA).[3] The United States District Court for the Northern District of California granted summary judgment in favor of the government agencies, and Conservation appealed. The Ninth Circuit reviewed the grant of summary judgment de novo and affirmed.

First, the Ninth Circuit addressed the government agencies’ arguments. USFS and FWS argued that Conservation failed to provide sufficiently specific notice of its claims sixty days prior to filing its complaint. The Ninth Circuit disagreed and explained that Conservation satisfied the notice requirements under the ESA. Additionally, USFS and FWS contended that Conservation’s ESA claim was moot because the agencies’ new consultation represented the remedial actions obtainable under the ESA. The Ninth Circuit rejected this mootness argument, stating that the agencies merely continued the same behavior challenged by Conservation and the new consultation did not remedy the alleged failures in prior consultations.

Second, the Ninth Circuit held that the agencies complied with the ESA. Under the ESA, USFS must consult with FWS to prepare a Biological Opinion if the agency’s planned action will destroy or modify “critical” habitat or “jeopardize” a threatened species.[4] Conservation alleged that USFS did not consider new information in a 2011 Recovery Plan for the owl—in particular, the short-term effects of the project on the owl, a study on the threat of invasive barred owls (Strix varia), and recommendations for protecting habitat. The Ninth Circuit noted that USFS’s Biological Assessment addressed several short-term effects on the owl’s habitat and prey. Furthermore, the court explained that USFS had authority to omit the study on barred owls from the Biological Assessment and that recommendations in a plan or study do not bind an agency to act. Finally, in response to Conservation’s assertion that the agencies failed to use the “best scientific . . . data available” in their consultation,[5] the Ninth Circuit explained that it must defer to the agency’s selection of scientific data, because it relates to the agency’s special expertise.

Finally, the Ninth Circuit held that USFS and FWS complied with NEPA. Under NEPA, agencies must prepare an environmental impact statement for actions affecting the quality of the environment and propose alternatives to the actions.[6] Conservation argued that USFS failed to take a “hard look” at environmental impacts as required by NEPA because it did not consider short-term effects on the owl and the threat of barred owls.[7] The Ninth Circuit disagreed and explained that USFS discussed numerous short-term effects on the owl and concerns about barred owls in its two environmental impact statements. Thus, the court held that USFS took the requisite hard look at potential effects of the project on owls.

In sum, the Ninth Circuit held that Conservation did not carry its burden to show that USFS and FWS failed to comply with the ESA and NEPA. Because USFS and FWS consultations and conclusions satisfied ESA and NEPA regarding effects of the Beaverslide Project on the Northern Spotted Owl, the Ninth Circuit affirmed the district court’s grant of summary judgment.

 

Footnotes    (↵ returns to text)

  1. The Beaverslide Project is a lumber thinning and fuel reduction project in northern California.
  2. Endangered Species Act of 1973, 16 U.S.C. §§ 1531–1544 (2012).
  3. National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321–4370h (2012).
  4. 16 U.S.C. § 1536(a)(2) (2012).
  5. Id.
  6. 42 U.S.C. § 4332(C) (2012).
  7. W. Watersheds Project v. Abbey, 719 F.3d 1035, 1047 (9th Cir. 2013).
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