Guardians v. United States Fish and Wildlife Service

          ORDER

          HONORABLE RANER C. COLLINS SENIOR UNITED STATES DISTRICT JUDGE

         The Mexican Spotted Owl (“MSO”)^[1] 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.)^[2]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.

         Currently 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^[3] that are non-compliant and (2) an order requiring re-initiation of ESA Section 7(a)(2) formal consultation. (Doc. 10 at 34-35.)

         Neither 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.

         STATUTORY AND REGULATORY BACKGROUND

         A. Statutory Framework: The Endangered Species Act

         The 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).

         To 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:

         1. Recovery Plan

         When a 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, 2006).

         2. Informal Consultation and Biological Assessment

          “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. §§ 402.12(k)(1)-(2).

         3. Formal Consultation and Biological Opinion

         If an 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).

         a. Jeopardy Opinion

         The 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. § 402.14(h)(3).

         b. Incidental Take Statement

         The ESA 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).

         If, as 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).

         4. Independent Obligation to Avoid Excess Take

         Finally, 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. 2010).

         HISTORICAL BACKGROUND

         A. The Mexican Spotted Owl

         On 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.

         In the 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, ^[4] compromised the MSO's habitat. USFS 20. FWS surmised that, under the then-existing USFS' Forest Plans^[5] 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.

         1. The 1995 MSO Recovery Plan

         At the 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.

         To 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.

         The 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.

         2. The 1996 Amendment to the USFS Forest Plan

         In May 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”)^[6] 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).

         3. 1996 BiOp

         Two 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 724.

         4. 2005 BiOp

         FWS and 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. USFS 2338.

         5. 2011 Biological Assessment

         Defendants 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.

         6. The 2012 BiOps

         The 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.

         a. Timber Management and Wildfire

         The 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. Id.

         b. Incidental Take Statement and Population Monitoring

         FWS 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.

         The 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.

         FWS 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.

         7. The 2012 Recovery Plan and Revision

         a. Population Monitoring

         In June 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.

         In the 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 available.”).

         Furthermore, 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.

         Nonetheless, 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.

         B. Plaintiff's Complaint and Cross-Motions for Summary Judgment

         The 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.^[7]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.

         As 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.

         STANDARD ...