Friday, June 14, 2013

Conservation Congress v. U.S. Forest Service

Jun 13: In the U.S. Court of Appeals, Ninth Circuit, Case No. 12-16452. Appeal from the United States District Court for the Eastern District of California. The Appeals Court explains that the 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, 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), among other claims.
    CC unsuccessfully sought to enjoin the Mudflow Project based on its ESA claim and appealed the district court's denial of its motion for a preliminary injunction. The Appeals Court concluded 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 and affirmed the district court decision.
    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; and (2) the FWS issued an arbitrary concurrence letter accepting the BA's conclusion. A week before oral argument, Defendants filed a Suggestion of Mootness, seeking dismissal of the appeal because of recent events. Defendants argued that a new 2013 habitat designation, and subsequent reinstatement of informal consultation between the Forest Service and the FSW, render this appeal moot; however, the Appeals Court disagreed.
    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.
    The Appeals Court rules, "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. . . CC's argument also fails because there is simply no statutory mandate to consider cumulative effects during informal consultation. . . 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."
    The Appeals Court also ruled, ". . .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. . . 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. . . 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."
    Access the complete opinion (click here). [#Wildlife, #Land, #CA9]
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