Conservation Congress v. Nancy Finley

774 F.3d 611, 79 ERC (BNA) 1909, 2014 U.S. App. LEXIS 23675, 2014 WL 7139676
CourtCourt of Appeals for the Ninth Circuit
DecidedDecember 16, 2014
Docket12-16916
StatusPublished
Cited by52 cases

This text of 774 F.3d 611 (Conservation Congress v. Nancy Finley) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Conservation Congress v. Nancy Finley, 774 F.3d 611, 79 ERC (BNA) 1909, 2014 U.S. App. LEXIS 23675, 2014 WL 7139676 (9th Cir. 2014).

Opinion

OPINION

THOMAS, Chief Judge:

We again consider the fate of the threatened Northern Spotted Owl, this time in the context of a lumber thinning and fuel reduction project in northern California, known as the Beaverslide Project. Conservation Congress contends that the federal government violated various national environmental laws in failing to consult adequately as to the project’s potential effects on the owl. 1 The district court granted summary judgment in favor of the government, and we affirm.

I

The Beaverslide Project is located on approximately 13,241 acres of national forest land in Trinity County, California. According to the United States Forest Service, the project’s two main purposes are to protect against the current risk of wildfires due to the dense forest, and to provide a sustainable, long-term timber supply to local communities. The project calls for commercial thinning of trees, reduction of fuels, and the creation of fuel corridors, among other treatments.

The Northern Spotted Owl is a nocturnal predator that occupies forest land stretching from southwest British Columbia-through Washington, Oregon, and California. The owl has been listed as a threatened species under the Endangered Species Act, 16 U.S.C. § 1531, et seq., since 1990, and many populations of the owl continue to decline. Recognizing the threat to the owl, the United States Fish and Wildlife Service issued a 2008 Recovery Plan, as well as a revised 2011 Recovery Plan, providing recommendations and suggesting actions to aid in protecting the Northern Spotted Owl. Recovery Plans are prepared in accordance with section 1533(f) of the Endangered Species Act for all endangered and threatened species, and while they provide guidance for the conservation of those species, they are not binding authorities. Friends of Blackwater v. Salazar, 691 F.3d 428, 432-34 (D.C.Cir.2012).

A

The Forest Service and the Fish and Wildlife Service consulted on the project’s potential effects on the Northern Spotted Owl. Both the Endangered Species Act and the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321, et seq., establish frameworks for consultations.

*615 The Endangered Species Act “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., 698 F.3d 1101, 1106 (9th Cir.2012) (citation and internal quotation marks omitted). Particularly relevant here is section 7(a)(2) of the Endangered Species Act, which governs the consultations that must take place between agencies. 16 U.S.C. § 1536(a)(2). The Endangered Species Act imposes both substantive and procedural duties on agency consultation. Forest Guardians v. Johanns, 450 F.3d 455, 457 (9th Cir.2006). Substantively, agencies contemplating certain kinds of federal action are required to insure that the action they take “is not likely to jeopardize the continued existence” or “result in the destruction or adverse modification of [critical] habitat” of an endangered or threatened species. Conservation Cong. v. U.S. Forest Serv., 720 F.3d 1048, 1051 (9th Cir.2013) (alteration in original) (quoting 16 U.S.C. § 1536(a)(2)). Agencies must consult with either the Fish and Wildlife Service (for land-based species) or the National Marine Fisheries Service (for marine species) to determine the likely effects of their proposed actions on endangered or threatened species. Id.

According to the implementing regulations, the first step in the consultation process is for the acting agency to independently determine whether its actions “may affect” an endangered or threatened species or that species’s habitat. 50 C.F.R. § 402.14(a). If so, the agency must initiate either informal or formal consultation with the consulting agency. San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 596 (9th Cir.2014); see also 50 C.F.R. § 402.14. Informal consultation is an “optional process that includes all discussions, correspondence, etc.” between the two agencies and is “designed to assist the Federal agency in determining whether formal consultation or a conference is required.” 50 C.F.R. § 402.13(a). If upon completion of informal consultation, the two agencies agree in writing that the proposed action “is not likely to adversely affect” any endangered or threatened species, no further action is necessary. Conservation Cong., 720 F.3d at 1051; see also 50 C.F.R. §§ 402.13(a), 402.14(b)(1). However, if either agency determines that the proposed action is “likely to adversely affect” a listed species or habitat, formal consultation is required. See 50 C.F.R. § 402.14. Formal consultation entails the consulting agency preparing a “biological opinion” stating whether the proposed action, “taken together with cumulative effects, is likely to jeopardize the continued existence of listed species or result in the destruction or adverse modification of critical habitat.” 50 C.F.R. § 402.14(g)(4).

NEPA is “our basic national charter for protection of the environment.” Ctr. for Biological Diversity v. U.S. Forest Serv., 349 F.3d 1157, 1166 (9th Cir.2003) (citation and internal quotation marks omitted). The “twin aims” of NEPA are first, to “place[ ] upon an agency the obligation to consider every significant aspect of the environmental impact of a proposed action,” and second, to “ensure[ ] that the agency will inform the public that it has indeed considered environmental concerns in its decisionmaking process.” Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 97, 103 S.Ct.

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774 F.3d 611, 79 ERC (BNA) 1909, 2014 U.S. App. LEXIS 23675, 2014 WL 7139676, Counsel Stack Legal Research, https://law.counselstack.com/opinion/conservation-congress-v-nancy-finley-ca9-2014.