United States District Court, D. Arizona
HONORABLE RANER C. COLLINS SENIOR UNITED STATES DISTRICT
Mexican Spotted Owl (“MSO”) is an elusive
creature, making it conceptually and financially difficult to
track despite provisions in the 2012 Biological Opinions
(“BiOps”) recommending population monitoring.
Because of this quandary, United States Forest Service
(“USFS”) and United States Fish and Wildlife
Service (“FWS”) have been unable to conduct
range-wide population monitoring, a measure necessary to
remove the MSO from the listing of threatened species.
Plaintiff WildEarth Guardians' Amended Complaint claims
that FWS' 2012 BiOps, issued for the protection of the
MSO, are arbitrary and capricious in violation of the
Endangered Species Act (“ESA”). (Doc.
10.)Plaintiff contends that Defendants'
inability to monitor the MSO makes the conclusions in the
2012 BiOps faulty, and the resulting incidental take
statement invalid. Id.
before the Court are the parties' cross-motions for
summary judgment. (Docs. 50, 52.) Plaintiff seeks declaratory
and injunctive relief against Defendants, including: (1) an
order enjoining all USFS management actions in Region 3
national forests that are non-compliant and (2) an order
requiring re-initiation of ESA Section 7(a)(2) formal
consultation. (Doc. 10 at 34-35.)
party requested oral argument, and the Court finds that oral
argument is unnecessary for a just adjudication of this
matter. See LRCiv 7.2(f). Upon review of the record,
the Court will grant Plaintiff's Motion for Summary
Judgment insofar as it alleges the BiOps violate the ESA
because the jeopardy analysis fails to account for recovery
of the MSO; and grant Defendants' Cross-Motion for
Summary Judgment in part.
AND REGULATORY BACKGROUND
Statutory Framework: The Endangered Species Act
ESA, 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.
(“CBD v. USBLM”), 698 F.3d 1101, 1106
(9th Cir. 2012) (citation and quotation marks omitted);
see also 16 U.S.C. § 1531. When enacting the
ESA, Congress was primarily concerned with “halt[ing]
and revers[ing] the trend toward species extinction, whatever
the cost.” Tenn. Valley Auth. v. Hill, 437
U.S. 153, 180 (1978). Yet, “the ESA was enacted not
merely to forestall the extinction of the species (i.e.,
promote species survival), but to allow a species to recover
to the point where it may be delisted.” Gifford
Pinchot Task Force v. U.S. Fish & Wildlife Serv.,
378 F.3d 1059, 1070 (9th Cir. 2004).
address these concerns, the ESA imposes procedural and
substantive duties on some federal agencies. Forest
Guardians v. Johanns, 450 F.3d 455, 457 (9th Cir 2006).
These duties are as follows:
species is listed as threatened or endangered, ESA Section
4(f) mandates the development and implementation of a
Recovery Plan (“RP”). 16 U.S.C. §
1533(f)(1). RPs should include site-specific recommendations
discussing the management actions necessary to permit the
survival of the listed species. Id. §
1533(f)(1)(B)(i). Also, RPs must detail how the FWS can
determine whether a species should be delisted, id.
§ 1533(f)(1)(B)(ii), the timeline for the implementation
of these measures, as well as the approximate cost,
id. § 1533(f)(1)(B)(iii). RPs serve as guidance
for recovery, but do not create legally enforceable duties.
See Fund for Animals v. Rice, 85 F.3d 535, 548 (11th
Cir. 1996); Cal. Native Plant Soc'y v. EPA, No.
C06-03604 MJJ, 2007 WL 2021796, at *21 n.7 (N.D. Cal. Jul.
10, 2007); Grand Canyon Tr. v. Norton, No.
04-CV-636PHXFJM, 2006 WL 167560, at *2 (D. Ariz. Jan. 18,
Informal Consultation and Biological
“Procedurally, before initiating any action in an area
that contains endangered or threatened land-based species,
” federal action agencies (in this instance, USFS) must
informally consult with the appropriate consulting agency (in
this instance, FWS) “to determine the likely effects of
any proposed action on the species and its critical
habitat.” Conservation Cong. v. U.S. Forest
Serv., 720 F.3d 1048, 1051 (9th Cir. 2013) (citing
Nat. Res. Defense Council v. Houston, 146 F.3d 1118,
11126 (9th Cir. 1998)). If a listed species may be present in
an action area, the action agency must create a Biological
Assessment. 16 U.S.C. § 1536(c)(1). This is used to
determine whether to engage in formal consultation or in
“formulating a biological opinion.” 50 C.F.R.
Formal Consultation and Biological Opinion
action agency finds that an action may affect a listed
species or its habitat under the ESA, the action agency must
typically initiate a formal consultation with the appropriate
consulting agency. 50 C.F.R. §§ 402.14(a)-(c). The
formal consultation process culminates in the FWS'
production of a BiOp that advises the action agency as to
whether the proposed action, either alone or in combination
with other effects, would endanger the existence of the
listed species or adversely modify its habitat.
Conservation Cong., 720 F.3d at 1051 (citing 50
C.F.R. § 402.14(g)(4)). BiOps are considered final
actions that may be reviewed by the District Court.
Nat'l Wildlife Fed'n v.
Nat'l Marine Fisheries Serv., 524
F.3d 917, 925 (9th Cir. 2008).
BiOp must decide whether or not an agency action jeopardizes
the listed species and then issue a “jeopardy” or
“no jeopardy” opinion, 50 C.F.R. §
402.14(h)(3), based on “the best scientific and
commercial data available, ” 16 U.S.C. §
1536(a)(2). An action that jeopardizes a species is one that
“reduce[s] appreciably the likelihood of both the
survival and recovery of a listed species in the wild by
reducing the reproduction, numbers, or distribution of that
species.” 50 C.F.R. § 402.02. When a no-jeopardy
opinion issues, the BiOp must also include reasonable and
prudent alternatives (“RPA”) to promote the
listed species' continued existence. 50 C.F.R. §
Incidental Take Statement
imposes a substantive duty upon the action agency to
“take” listed species only in specified
instances. 16 U.S.C. § 1535(a)(2). “Take”
means “to harass, harm, pursue, hunt, shoot, wound,
kill, trap, capture, or collect” a protected species
“or to attempt to engage in any such conduct.”
Id. § 1532(19).
here, the FWS issues a “no jeopardy” and
“no adverse modification of critical habitat”
opinion, but determines that the action may incidentally
“take” individual members of a listed species,
FWS must issue an incidental take statement
(“ITS”). 16 U.S.C. § 1536(b)(4); 50 C.F.R.
§ 402.14(i). The ITS must articulate: (1) the amount or
extent of the incidental take on the species, (2)
“reasonable and prudent measures”
(“RPMs”) needed to minimize the amount or extent
of take, and (3) the “terms and conditions” that
the action agency must follow to implement the RPMs. 16
U.S.C. §§ 1536(b)(4)(i)-(iv). Take is permissible
if it complies with the ITS' terms and conditions.
Id. § 1536(o)(2). However, action agencies like
the USFS must reinitiate consultation if the specified level
of take is exceeded, 50 C.F.R. § 402.14(i)(4), or if the
action considered in the BiOp is “subsequently modified
in a manner that causes an effect to the listed species or
critical habitat that was not considered in the BiOp,
” Id. § 402.16(c).
Independent Obligation to Avoid Excess Take
ESA Section 7 imposes an independent and continuing
obligation upon action agencies to avoid taking action that
would jeopardize the existence of a listed species or
adversely modify its habitat. 16 U.S.C. § 1536(a)(2);
Pyramid Lake Paiute Tribe of Indians v. U.S. Dep't of
the Navy, 898 F.2d 1410, 1415 (9th Cir. 1990).
Therefore, the action agency cannot be relieved of its duty
to adhere to the ESA simply through compliance with the BiOp;
it has an independent duty to ensure that its reliance on a
BiOp is not arbitrary or capricious. Id.; Wild Fish
Conservancy v. Salazar, 628 F.3d 513, 532 (9th Cir.
The Mexican Spotted Owl
March 16, 1993, FWS listed the MSO as a
“threatened” species under the ESA. USFS 1. At
the time of listing, FWS determined that most of the MSOs
known to exist were found on national forest lands.
See USFS 71. The listing decision acknowledged that,
due to the MSO's secretive nature, no historic or current
MSO population data existed. USFS 1; FWS 7902-06. What was
known includes that MSOs nest and forage in canyons and on
mountains with mature-growth forests consisting primarily of
high, enclosed, thick, multilayered canopies with uneven-aged
tree stands. USFS 1-2.
listing, FWS discussed threats to the MSO's habitat or
range, including an estimate that historically, 1, 037, 000
acres of MSO habitat had been converted from suitable to
“unsuitable . . . [but] capable of becoming suitable .
. . sometime in the future.” USFS 19. Over seventy-five
percent of that conversion was attributed to “human
activities (primarily timber harvest)” and over
twenty-one percent to “natural causes (primarily
fire).” Id. FWS explained how historic and
contemporary timber management practices, specifically
even-aged silviculture,  compromised the MSO's habitat. USFS
20. FWS surmised that, under the then-existing USFS'
Forest Plans for Region 3, such timber management
practices could be expected to continue. Id.
Furthermore, FWS also predicted that “the future
incidence [of catastrophic wildfires] can be expected to
remain fairly constant.” USFS 22. In essence, the
primary dangers to the survival of the MSO were (1) timber
practices and (2) severe wildfires. USFS 20.
The 1995 MSO Recovery Plan
same time as the listing, the FWS Southwestern Regional
Director appointed a team to develop a species RP. USFS 43.
FWS approved the team's resulting 1995 RP. USFS 30. The
1995 RP's Executive Summary explained the purpose of the
RP was to “outline the steps necessary to remove the
[MSO] from the list of threatened species.” USFS 43. To
address the primary concerns of timber management and
wildfires, the 1995 RP's goal was “to protect
conditions and structures used by [MSOs] where they exist and
to set other standards on a trajectory to grow into
replacement nest habitat or to provide conditions for
foraging and dispersal.” USFS 133.
encourage population growth, the Recovery Team created an
“adaptive management” plan. USFS 133-34. FWS
described adaptive management as a flexible process that
would be refined as data was received through implementation
of the management model and monitoring. USFS 9934 SUP1.
Visually, the adaptive management plan was pictured as a
three-legged stool, supported equally by population
monitoring, habitat monitoring, and management
recommendations. USFS 134-35. Members of the recovery team
stated, “[l]ike a stool, if any one of the legs were
removed, the recovery plan would fail.” USFS 1006.
timeline for the 1995 RP was limited to between ten and
fifteen years, at which time it was anticipated that the
monitoring protocol in the 1995 RP may enable the delisting
of the MSO. USFS 109. Over twenty years later, delisting has
not occurred, and information about the current MSO
population is still minimal.
The 1996 Amendment to the USFS Forest Plan
1996, FWS released a region-wide amendment to the Forest
Plans that incorporated the recommendations from the 1995 RP.
USFS 380; USFS 2338. It also incorporated the 1996 Standards
and Guidelines (“1996 S&Gs”), which committed
USFS to protecting MSOs by (1) creating Protected Activity
Centers (“PACs”) and restricted sites, (2)
implementing fuels reduction management, and (3) encouraging
MSO habitat by eliminating even-aged silviculture and
promoting multi-layered canopies. USFS 466-474. The 1996
S&Gs also provided that agencies should conduct surveys
of potential MSO areas. USFS 466. The USFS' adoption of
the 1996 Amended Forest Plan meant that all USFS actions must
be consistent with the Forest Plans' terms. See
16 U.S.C. § 1604(i).
BiOps were produced following the 1995 RP. USFS 633-696,
697-736. The first BiOp contemplated not incorporating the
1996 S&Gs and led to a jeopardy opinion. USFS 633-696.
The second BiOp, adopted by FWS, incorporated the adaptive
management approach and the 1996 S&Gs, and concluded that
USFS forest management programs did not jeopardize the MSO.
USFS subsequently reinitiated another Section 7(a)(2) formal
consultation about USFS' timber management. FWS R 8920.
The findings from the consultation led to the 2005 BiOp. The
2005 BiOp contained an admission that “no long-term
monitoring has been initiated pursuant to the [MSO] Recovery
Plan.” USFS 2339. FWS also admitted in the 2005 BiOp
that due to inadequate monitoring methods, existing MSO
population data was unreliable and limited. USFS 2300. But,
of the sparse information available, it appeared the MSO
population was declining. Id. Nonetheless, like its
predecessor, the 2005 BiOp produced a no-jeopardy opinion.
2011 Biological Assessment
later reinitiated formal consultation due to concerns that
USFS may exceed permissible take. FWS 6973. FWS then created
a Biological Assessment discussing the plausible effects of
the current Forest Plans on MSOs. FWS 6947. The Biological
Assessment was divided into eleven subsections based on
national forests. FWS 6974. The assessment explained that
USFS management direction may adversely affect the MSO
population and habitat. See e.g., FWS 7460. This
assessment led to the 2012 BiOps.
The 2012 BiOps
2012 BiOps were similar to previous iterations. First, each
BiOp issued a no-jeopardy opinion. USFS 6145, USFS 6795.
Second, the BiOps were premised on the continued
implementation of the 1996 S&Gs. FWS 8924-25. The major
difference between the earlier BiOps and the 2012 version was
that the latter BiOps were divided on a forest-by-forest
basis. This resulted in eleven BiOps tailored to each
national forest. See Apache Sitegreaves, FWS 7561;
Carson, FWS 7791; Cibola FWS 7839; Coconino, FWS 7889;
Coronado, FWS 8085; Gila, FWS 8435; Kaibob, FWS 8662;
Lincoln, FWS 8708; Prescott, FWS 8786; Santa Fe, FWS 8913;
Tonto, FWS 8960.
Timber Management and Wildfire
BiOps indicated that timber harvesting techniques had
shifted, reducing the threat of loss of habitat due to timber
management. FWS 8929. Even so, the other significant
threat-stand-replacing wildfires-was greater than ever.
Incidental Take Statement and Population
admitted in the BiOps that determining individual take was
not plausible because population monitoring had not occurred.
See e.g., FWS 8940. In lieu of individual
monitoring, which FWS found to be cost prohibitive and
logistically difficult, the 2012 BiOps allowed USFS to
determine incidental take by measuring PACs. Id.
BiOps touched on a Draft Revised Recovery Plan outlining a
possible monitoring procedure to ascertain MSO population
trends. FWS 8939. The BiOps, however, did not describe the
plan or specifically incorporate the plan. The BiOps did
state that the ITS “attempted] to provide for a level
of project-specific implementation monitoring at the
individual [BiOp] level in order to assess incidental take
associated with a site-specific action.” FWS 8940.
concluded that USFS' actions would not jeopardize the MSO
because they were consistent with the concerns leading to the
MSO's listing. FWS 8938-39.
The 2012 Recovery Plan and Revision
2011, prior to the issuance of the 2012 BiOps, FWS issued a
Draft Recovery Plan for the MSO. FWS R 443. Later, a Revised
RP (“2012 Revised RP”) issued. USFS 9534 SUP. The
goals listed in the 2012 Revised RP focused on five
strategies for improving the MSO population: “1)
protecting existing populations; 2) managing for habitat into
the future; 3) managing threats; 4) monitoring population and
habitat; and 5) building partnerships to help facilitate
recovery.” USFS 9540 SUP 1.
2012 Revised RP, FWS reiterated that there were few
population studies currently available, the data was limited,
and the size and procedures implemented were varied. USFS
9585 SUP. Therefore, it was difficult to accurately estimate
MSO population trends. USFS 9585 SUP (“[R]ange-wide
conclusions cannot be reliably inferred from the limited data
while the FWS noted in the 2012 Revised RP that there was an
increase in PACs, it conceded that this increase was likely
due to new survey areas, and “an increase in abundance
cannot be inferred from these data.” USFS 9539 SUP.
the FWS acknowledged that population monitoring was crucial
to track recovery and for eventual delisting. USFS 9540,
9542, 9623 SUP. To delist, the 2012 Revised RP suggested a
combination of managing the MSOs' habitat and
“vigilant monitoring.” USFS 9540 SUP. But, the
FWS admitted that it was impossible to meet the monitoring
requirements described in the 2005 BiOp. USFS 9585, USFS
9768; USFS 9540 SUP. So, a surrogate method of tracking
overall population was recommended; with surveying of owl
occupancy at randomly selected, fixed sites. USFS 9542 SUP.
Plaintiff's Complaint and Cross-Motions for Summary
case before the Court concerns Plaintiff's challenges to
six of the FWS' 2012 BiOps. In each BiOp, the FWS
determined that USFS' proposed programmatic management
direction was (1) not likely to jeopardize the continued
existence of the MSO and (2) not likely to destroy or
adversely modify the MSO's designated critical
habitat.As a result, each BiOp also contains an
ITS. These ITSs specify the authorized amount of MSO take by
way of a surrogate rather than numerical caps. USFS 6797.
discussed below, Plaintiff alleges the FWS' 2012 BiOps
and their various subparts are arbitrary and capricious in
various ways. Defendants argue the BiOps are reasoned. Both
seek summary judgment in their favor.