Gifford Pinchot Task Force v. United States Fish & Wildlife Service
Docket: No. 03-35279
Court: Court of Appeals for the Ninth Circuit; August 6, 2004; Federal Appellate Court
The case involves an appeal by various environmental organizations against six biological opinions (BiOps) issued by the United States Fish and Wildlife Service (USFWS) under the Endangered Species Act (ESA). These BiOps permitted timber harvesting in specific Northwest forests and authorized incidental "takes" of the Northern spotted owl, a threatened species. The litigation focuses on the USFWS's compliance with the ESA, particularly regarding the comprehensive Northwest Forest Plan (NFP), designed to protect the spotted owl.
Under the ESA, any federal action affecting a threatened species requires the action agency to consult with the consulting agency to ensure no jeopardy to the species or its critical habitat, as outlined in Section 7. The action agency requests this consultation, leading to the consulting agency issuing a BiOp that evaluates species status, environmental baseline, proposed action effects, and cumulative effects. If the BiOp finds no jeopardy or adverse habitat modification, it can issue an Incidental Take Statement (ITS), exempting the action agency from certain ESA prohibitions, provided they follow the ITS guidelines. Conversely, if jeopardy cannot be avoided, the BiOp would not exempt the agency from penalties under Section 9.
The Northern spotted owl has been listed as threatened since 1990 and was provided critical habitat in 1992 due to court orders. The NFP, adopted in response to litigation, regulates forest use and is divided into areas with varying harvesting rules, including "late successional reserves" (LSRs) that allow less harvesting than other lands. An analysis indicated that while the NFP would stabilize owl populations, a short-term decline was anticipated.
The Northwest Forest Plan (NFP) underwent a Section 7 consultation, resulting in a Biological Opinion (BiOp) that concluded there would be no jeopardy or adverse modification to the environment. The NFP, covering extensive federal forest lands from Northern Washington to Northern California, did not assess the specific impacts of individual actions or implementations, instead deferring such evaluations to future BiOps focused on particular projects. Since the NFP's approval, the Fish and Wildlife Service (FWS) issued at least 298 BiOps concerning spotted owls, authorizing 1,080 incidental takes and the removal, degradation, or downgrading of 82,000 acres of their habitat.
Six specific BiOps are central to ongoing litigation. The first three are programmatic BiOps for timber harvests: the Coos Bay BiOp (February 18, 1998) authorized the removal of 2,000 acres of suitable habitat and 1,043 acres of critical habitat, allowing incidental take of at least eight spotted owls; the Willamette BiOp (September 29, 1998) permitted modification of 29,276 acres of habitat, with over 9,000 acres removed and incidental take of "all" spotted owls; the Rogue Valley BiOp allowed removal of roughly 28,000 acres of suitable habitat and the incidental take of all affected spotted owl pairs.
The fourth BiOp, the Upper Iron Timber Sale BiOp (January 20, 1999), noted impacts on four owl pairs but lacked specifics on critical habitat impacts, authorizing incidental take of two pairs. The fifth, the Acci BiOp (September 23, 1999), allowed for the harvesting of 1,000 acres and incidental take of all spotted owls. The sixth, the La Roux timber sale BiOp (April 30, 1998), permitted removal of 148 acres of critical habitat and incidental take of a known pair and any owls in non-surveyed areas.
Following the issuance of these BiOps, appellants challenged them in the U.S. District Court for the Western District of Washington in November 2000. The American Forest Resource Council (AFRC) intervened, and attempts to obtain a temporary restraining order were denied. Cross motions for summary judgment were filed in March 2002, with the district court granting summary judgment to the FWS in July 2002 and issuing a final judgment by March 17, 2003. The appellants have since appealed, with the court affirming in part, reversing in part, and remanding the case.
Summary:
The grant of summary judgment is reviewed de novo under the Administrative Procedure Act’s arbitrary and capricious standard. The review is narrow yet thorough, ensuring the Fish and Wildlife Service (FWS) considers relevant factors and avoids clear errors in judgment. The Appellants contest six Biological Opinions (BiOps) regarding the jeopardy analysis and critical habitat requirements associated with Section 7 consultations of the Endangered Species Act (ESA). They argue the FWS's jeopardy analysis is inadequate, particularly criticizing its reliance on habitat changes instead of direct assessments of jeopardy to the spotted owl from specific projects. The FWS defends its methodology, asserting it is scientifically valid and within its discretion to use habitat tracking for assessing species jeopardy. The court acknowledges substantial deference to the agency's scientific methods and finds that the habitat proxy approach is permissible as it reasonably ensures that population projections for spotted owls are accurate. The habitat analysis considers various factors, including land type, habitat degradation, and the distribution of owls, and is supplemented by demographic studies to validate results. Ultimately, the court concludes the FWS's use of the habitat proxy is justified and not impermissible.
Appellants contend that the statutory framework of the Endangered Species Act (ESA) does not permit the use of a habitat proxy method for assessing jeopardy, regardless of its validity. They emphasize that the ESA focuses on both species counts and their habitats, as reflected in 16 U.S.C. § 1536(a)(2), which addresses species jeopardy and habitat modification. Appellants argue that since habitat is covered under the adverse modification analysis of Section 7, jeopardy assessments should prioritize direct species evaluations, or at least require verification of habitat models through actual population data. This argument is rejected, as the focus on species counts is viewed as too narrow. The Fish and Wildlife Service (FWS) maintains that it employs distinct methodologies for assessing habitat impacts related to jeopardy and adverse modification, thereby minimizing overlap. Properly utilized, habitat proxies can assess non-critical but essential habitats for endangered species, as not all occupied habitats qualify as critical under 16 U.S.C. § 1532(5)(C).
The ESA does not prescribe specific methods for jeopardy assessments, allowing for the use of habitat proxies. Appellants also challenge the FWS's reliance on the Northwest Forest Plan (NFP) in its jeopardy analyses. While the FWS does not evaluate project compliance with the NFP in the BiOps, it uses habitat allocations from the NFP, particularly Late-Successional Reserves (LSRs), to support its "no jeopardy" conclusion. The NFP BiOps commit to future project-specific analyses without authorizing incidental takes. Appellants liken this to a "shell game," but the court finds this unfounded, noting that the NFP was scientifically developed for spotted owl conservation, and the BiOps incorporate independent site-specific analyses alongside compliance with the NFP. The court affirms that such programmatic assessments followed by detailed project evaluations are permissible, referencing prior case law that supports this approach in environmental analysis contexts.
The Northwest Forest Plan (NFP) is recognized as a significant and unique land-management strategy that emerged from extensive federal efforts to address legal and scientific requirements in forest management. This plan, previously approved by the court, is deemed reliable, although concerns have been raised regarding the absence of effectiveness monitoring results and the plan's acknowledgment of its inability to measure effectiveness in the initial years. Current monitoring efforts are underway, with a report expected in 2004, which alleviates some concerns about the NFP's reliability.
The court emphasizes that without evidence demonstrating deficiencies in the NFP, the Fish and Wildlife Service (FWS) can appropriately rely on its projections and assumptions for jeopardy analysis. Appellants claim there are flaws in the FWS's jeopardy analysis, arguing that it inadequately addresses the current status of the spotted owl and fails to account for past incidental takes. They also criticize the cumulative effects analysis for lacking detail.
However, these arguments are viewed as mere rehashing of previous challenges against the reliance on the NFP, which the court has already rejected. Consequently, the court affirms the district court's summary judgment in favor of the FWS regarding the jeopardy analysis.
In contrast, the critical habitat assessment presents issues for the FWS, particularly concerning the interpretation of "adverse modification" as defined in federal regulations. Under the Endangered Species Act (ESA), the FWS must ensure that proposed actions do not jeopardize endangered species or lead to adverse modifications of their critical habitats.
The FWS defines "destruction or adverse modification" as any alteration that significantly reduces the value of critical habitat necessary for both the survival and recovery of a listed species. This definition requires that only when there is an appreciable diminishment of critical habitat for survival can adverse modification be claimed. The appellants argue that this interpretation sets an excessively high threshold for determining adverse modification, as it focuses solely on survival rather than recovery. The courts, including the Fifth and Tenth Circuits, have recognized that this regulatory definition effectively excludes the recovery goal from consideration, allowing for potential complete loss of critical habitat necessary for recovery as long as habitat essential for survival is not appreciably diminished. This interpretation is seen as inconsistent with the Endangered Species Act (ESA), which aims not only to prevent extinction but also to facilitate recovery to the point of delisting. The ESA defines conservation as encompassing all methods to bring a species to a point where protective measures are no longer necessary, and critical habitat includes areas crucial for the species' conservation. Thus, conservation and survival are intended to be distinct yet interconnected objectives within the ESA.
The establishment of "critical habitat" aims to designate areas necessary for a species' survival and recovery, as recognized by Congress, which sees conservation and survival as related but distinct objectives. The statutory language indicates that "destruction or adverse modification" occurs when critical habitat loss threatens recovery, even if survival habitat remains sufficient. However, the current regulatory interpretation restricts adverse modification to instances where survival is directly threatened, thereby limiting protections intended by Congress under the Endangered Species Act (ESA). This regulatory narrowing misinterprets Congress' intent by conflating "or" with "and," failing to provide necessary recovery protections. The Fifth Circuit in Sierra Club affirmed that conservation encompasses broader recovery goals, distinguishing it from mere survival. The court noted that Congress previously rejected regulatory definitions requiring impacts on both recovery and survival, reaffirming that the agency's current definition does not meet the protection standards Congress intended. The agency's error in this definition raises concerns about procedural integrity, necessitating a demonstration that this error was harmless, especially given any improprieties in the decision-making process.
Harmless error in agency review is limited to situations where an administrative mistake does not impact the decision's procedure or outcome. Caution is necessary when applying this rule to informal agency decisions, such as Biological Opinions (BiOps), to uphold the Administrative Procedure Act's requirements. The analysis must address both procedural integrity and substantive results. The Fish and Wildlife Service (FWS) operates under a regulation deemed impermissible, affecting the evaluation of recovery in critical habitat assessments. The Supreme Court mandates a presumption that the agency adhered to its adverse modification regulation, unless evidence suggests otherwise. The FWS's assertion of its regulation's correctness bolsters this presumption. If the FWS claims harmless error, it must demonstrate that following the incorrect regulation did not alter the critical habitat analysis's outcome, which would eliminate the agency's deference in this context. The government's defense shifts from reliance on the flawed regulation to suggesting that recovery considerations were implicitly acknowledged in the analysis. In reviewing specific BiOps, such as the Rogue Valley BiOp, recovery is referenced only briefly, primarily in introductory remarks, indicating that the treatment of recovery is more descriptive than substantive.
Analysis of recovery benefits related to critical habitat is postponed in favor of examining Late-Successional Reserves (LSRs) established by the Northwest Forest Plan (NFP). The Biological Opinions (BiOps) indicate that the loss of "suitable acres" negatively impacts the functionality of the critical habitat network, although this action is described as adversely affecting critical habitat without likely causing adverse modification. This suggests a misinterpretation of regulations, as the agency seemingly disregarded recovery considerations mandated by its own rules.
In the Willamette Province BiOp, there is a nearly verbatim reiteration of the critical habitat's role and the recovery plan's integration into the NFP, which fails to provide a sufficient impact evaluation of the proposed actions. While the BiOp acknowledges the loss of non-LSR critical habitat, it argues that the compensatory nature of non-critical habitat LSRs mitigates adverse modification risks.
The Coos Bay BiOp lacks any reference to the purpose of critical habitat or the concepts of recovery and conservation, focusing solely on acreage lost and reliance on LSRs for compensation. Evaluations of timber sales, including Upper Iron, Acci, Gnat, and Smooth Juniper, similarly omit discussions of recovery and conservation, merely presenting the percentage loss of various forest types without substantive analysis.
The La Roux Timber Sale briefly addresses the loss of "suitable" habitat and mentions dispersal across LSRs, yet does not engage with recovery or conservation concepts. The cumulative lack of recovery discussion in the last four BiOps implies that the U.S. Fish and Wildlife Service (FWS) did not adequately consider recovery, as required by law. Under established legal principles, particularly the Chenery and Overton Park doctrines, the absence of a documented analysis precludes any assumption of an agency rationale or post hoc justification. The FWS's failure to demonstrate that its oversight was harmless raises significant concerns about its compliance with legal standards regarding critical habitat and species recovery. The initial two BiOps, while mentioning recovery, still do not offer a robust analysis, indicating an ongoing deficiency in the agency's approach to the critical habitat evaluation.
The BiOps assert that logging activities will not compromise the purpose of the Late-Successional Reserves (LSRs), despite acknowledging potential loss of critical habitat. However, the analysis fails to adequately address the implications of this habitat loss on recovery value. The agency operates under a presumption of compliance with regulations, and any claims by Appellants regarding regulatory non-adherence lack sufficient evidence to challenge this presumption. Notably, the agency’s discussion of recovery merely transitions from an analysis of critical habitat loss to compliance with the Northwest Forest Plan (NFP), lacking a substantive evaluation of recovery as required by the Endangered Species Act (ESA).
The agency’s assessment of "adverse modification" indicates that losses outside LSRs may adversely impact critical habitat but are unlikely to lead to adverse modification. This conclusion is based solely on the percentage of critical habitat lost, without direct analysis of recovery impacts or evidence that the agency considered factors beyond its regulations. Judicial precedent prevents substituting the court's analysis for the agency’s, and the silence in the BiOps does not imply a comprehensive concern for recovery.
The initial BiOps do not substantiate the agency's rebuttal of the presumption of regularity or demonstrate that it considered species recovery when concluding "no adverse modification" occurred. Consequently, the critical habitat analysis is fundamentally flawed. Appellants present three additional criticisms of the analysis in the six BiOps. First, they argue the FWS recognized adverse effects on critical habitat but incorrectly determined that these did not constitute adverse modification. This challenge is weak since any consideration of “appreciable diminishment” was likely conducted under an erroneous legal standard requiring impacts on both survival and conservation. Second, Appellants question the scale of analysis used in the "programmatic" BiOps, suggesting that the FWS employed an inappropriate "landscape" scale for evaluating critical habitat degradation.
The evaluation of critical habitat by the Fish and Wildlife Service (FWS) considered both large-scale impacts and local effects, specifically addressing concerns regarding the loss of 20,000 acres of critical habitat within six million acres of federal land. While large-scale assessments can obscure localized risks to species, the FWS demonstrated that it adequately accounted for local impacts, including connectivity issues. The court found no evidence of arbitrary or capricious decision-making by the FWS, rejecting claims that significant local effects were overlooked.
Appellants argued that the reliance on Late-Successional Reserves (LSRs) as compensatory habitat was unlawful; however, the FWS maintained that LSRs complement rather than substitute for designated critical habitat. The Endangered Species Act (ESA) requires that adverse modification analyses focus specifically on areas designated as critical habitat, which are essential for the survival and recovery of threatened species. The court emphasized that using parallel habitat conservation efforts as a substitute for critical habitat would undermine the protections intended by Congress under the ESA. Compliance with broader conservation plans like the Northwest Forest Plan (NFP) does not equate to the legal protections afforded by the ESA's Section 7 consultations. Thus, the court affirmed that the intent of the ESA mandates a focused analysis on designated critical habitat, supported by established legal precedents.
In TVA v. Hill, the Supreme Court ruled that the potential relocation of the endangered snail darter to suitable habitats does not exempt the Endangered Species Act (ESA) from prohibiting the destruction of designated critical habitats. The existence of alternative habitats, such as Late Successional Reserves (LSRs), cannot replace the importance of designated critical habitats. The Court emphasized that the ESA mandates the protection of critical habitats, regardless of the availability of suitable non-critical habitats. In a similar case concerning the spotted owl, it was determined that the presence of suitable alternative habitats does not affect the assessment of adverse modifications to critical habitats. The obligation of the Fish and Wildlife Service (FWS) to designate and protect critical habitats cannot be negated by ongoing conservation efforts. Any proposed changes to critical habitat boundaries must adhere to legal processes, and the FWS cannot justify a finding of no adverse modification based solely on the existence of suitable external habitats, which was deemed arbitrary and contrary to law.
Additionally, the appellants challenged amendments made by the FWS to Biological Opinions (BiOps), arguing that such updates undermine the consultation process by allowing unsupported opinions to be issued without proper evidentiary support. The FWS contended that the updates were permissible and did not introduce new evidence requiring formal consultation. However, the argument was rejected, as any new data necessitating a reevaluation of jeopardy or critical habitat assessments would require the FWS to reinitiate consultations. If the data was preexisting, the FWS should have incorporated it earlier. The FWS’s reference to City of Waltham v. USPS was deemed irrelevant, as it involved significant changes in impact assessments.
The First Circuit upheld the jeopardy analysis conducted by the Fish and Wildlife Service (FWS) in six biological opinions (BiOps), affirming the district court's grant of summary judgment to the agency on this aspect. However, the court found significant flaws in the critical habitat analysis, specifically that it relied on an unlawful definition of "adverse modification" and improperly substituted land suitability reserves (LSRs) for critical habitat. These errors were deemed not harmless, leading to a reversal of the district court's judgment on the critical habitat inquiry, with instructions to grant summary judgment to the Petitioners.
The court clarified the consulting agency roles under the Endangered Species Act (ESA), noting that the FWS is responsible for freshwater and land-based species like the spotted owl, while marine species fall under the National Marine Fisheries Service (NMFS). Approximately 70% of the spotted owl's critical habitat is within an LSR. The six BiOps were chosen as representative cases, addressing common issues relevant to all.
The court acknowledged a precedent concerning the National Forest Management Act (NFMA), indicating that while the statutes differ, the principle allowing proxy modeling to evaluate species populations is applicable under the ESA. It also stated that amendments to the BiOps aimed to demonstrate compliance with the Northwest Forest Plan (NFP) should not be admitted as evidence. Claims challenging FWS regulations are reviewed under the Chevron framework, and if errors are significant, remanding to the agency for clarification is preferred. The court emphasized that it cannot speculate on the FWS's rationales or accept post hoc justifications, as these do not provide a sufficient basis for judicial review.
A post hoc analysis of agency decisions lacks deference under Overton Park, emphasizing that judicial review must rely solely on the agency's articulated reasoning in the record. Agencies cannot be presumed to have considered significant objections or alternatives if they did not explicitly address them. The agency's decisions must be upheld based on its stated rationale, as established in Beno v. Shalala and Motor Vehicle Mfrs. Ass’n. The focus is on the agency's explicit statements in the critical habitat analysis within the six BiOps. Implicit considerations of species recovery cannot substitute for clear acknowledgment by the agency. Courts cannot explore unexpressed agency thought processes, as noted in Morgan v. United States. The reliance on Land Suitability Reviews (LSRs) to offset lost critical habitat is a significant basis for potential reversal. Specifically, the Willamette BiOp indicates that the FWS relied solely on LSRs and lacked understanding of critical habitat functionality outside these areas, suggesting any recovery concerns were limited to LSRs. The Endangered Species Act mandates an analysis of adverse modifications to critical habitat, which the FWS failed to provide evidence for. This error is deemed significant, as LSR reliance pervades the BiOps, and prior rulings, such as from the First Circuit, indicate that such assessments warrant skepticism and are not entitled to deference.
