Home » Case Summaries » 2015 » Cascadia Wildlands v. Thrailkill, 806 F.3d 1234 (9th Cir. 2015)

 
 

Cascadia Wildlands v. Thrailkill, 806 F.3d 1234 (9th Cir. 2015)

 

In this case, Cascadia Wildlands and other environmental groups[1] (collectively, Cascadia) brought an action seeking to enjoin the Douglas Fire Complex Recovery Project (Recovery Project), which authorized salvage logging of roughly 1,600 acres of fire-damaged forest. In approving the Recovery Project, the Medford District of the Bureau of Land Management (BLM) relied on a biological opinion (BiOp) issued by the United States Fish and Wildlife Service (FWS) that concluded that the Recovery Project was “not likely to result in jeopardy to the [Northern Spotted Owl] species or destruction or adverse modification of critical habitat.”[2] Cascadia claimed that FWS failed to comply with procedural requirements of the Endangered Species Act (ESA)[3] by not applying the “best available scientific data” to its biological opinion regarding: 1) the effect of barred owls on detecting the presence of spotted owls, 2) the effect of wildfires on the spotted owl habitat, and 3) FWS’s 2011 Northern Spotted Owl Recovery Plan (Recovery Plan).[4] The parties consented to final disposition by a magistrate judge in the United States District Court for the District of Oregon. The magistrate judge denied Cascadia’s motion for preliminary injunction. The Ninth Circuit affirmed, finding that FWS’s conclusions were based on the best available science and that Cascadia had failed to establish a likelihood of success on the merits.

Cascadia first argued that FWS did not use the best available scientific information to account for the adverse impact of barred owls on the accuracy of northern spotted owl surveys, which caused FWS to underestimate the number of spotted owl sites and make unsupported “no jeopardy” conclusions. The Ninth Circuit disagreed. The court found that the record showed that FWS relied on several scientific surveys addressing the impact of barred owls on spotted owl survey results. The court deferred to FWS’s judgment over what constituted the best scientific data available, and held that FWS had satisfied its statutory requirements.

Next, Cascadia argued that FWS did not use the best available scientific information when determining that the effects of wildfires did not jeopardize the spotted owl habitat. The court found that FWS relied on several scientific reports regarding pre fire and post fire habitats to support the conclusion in its BiOp. Furthermore, the court noted that a reviewing court cannot substitute its judgment for that of the agency when the agency used adequate and reliable data. Because the court concluded that the Service issued its opinion based on multiple relevant scientific studies, it rejected Cascadia’s claim.

Finally, Cascadia argued that the Recovery Plan constituted the best available science and the FWS was required to follow it. The court rejected this argument for two reasons. First, the court stated that recovery and jeopardy are two distinct concepts. The court noted that a Recovery Project that does not jeopardize the spotted owl habitat does not necessarily need to promote or bring about a long-term recovery of the species. Rather, the BiOp properly focused on the Recovery Project’s ability to conserve the habitat so as not to have a detrimental effect on the species population. Second, the court noted that FWS was not obligated to follow the Recovery Plan because the plan does not have the force of law and is therefore not binding on FWS.

In sum, Cascadia failed to show that FWS did not utilize the best available scientific information when issuing its BiOp that the Recovery Project would not jeopardize the Northern Spotted Owl or its critical habitat. Because Cascadia failed to show that it was likely to succeed on the merits, the Ninth Circuit affirmed the denial of the preliminary injunction.

Footnotes    (↵ returns to text)

  1. Plaintiff-appellants included Oregon Wild, and the Center for Biological Diversity.
  2. Cascadia Wildlands v. Thrailkill, 806 F.3d 1234, 1236 (9th Cir. 2015).
  3. Endangered Species Act of 1973, 16 U.S.C. §§ 1531–1544 (2012).
  4. U.S. Fish & Wildlife Serv., Revised Recovery Plan for the Northern Spotted Owl (2011).
Print this pageEmail this to someoneTweet about this on TwitterShare on Facebook

Comments are closed

Sorry, but you cannot leave a comment for this post.