WildEarth Guardians v. United States Fish and Wildlife Service

• Court: District Court, D. Arizona
• Decided: September 12, 2019
• Docket: 4:13-cv-00151
• Status: Unknown

Opinion

Case 4:13-cv-00151-RCC Document 89 Filed 09/12/19 Page 1 of 39

WO 1

2 3

5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE DISTRICT OF ARIZONA 7

8 WildEarth Guardians, No. CV-13-00151-TUC-RCC 9

10 Plaintiff, ORDER

11 v. 12 United States Fish and Wildlife Service, et al., 13

14 Defendants.

15 The Mexican Spotted Owl (“MSO”)1 is an elusive creature, making it conceptually

16 and financially difficult to track despite provisions in the 2012 Biological Opinions

17 (“BiOps”) recommending population monitoring. Because of this quandary, United States Forest Service (“USFS”) and United States Fish and Wildlife Service (“FWS”) have been 18 unable to conduct range-wide population monitoring, a measure necessary to remove the 19 MSO from the listing of threatened species. Plaintiff WildEarth Guardians’ Amended 20 Complaint claims that FWS’ 2012 BiOps, issued for the protection of the MSO, are 21

23 1 Acronyms: BiOp = Biological Opinion; ESA = Endangered Species Act; FWS = United States Fish and Wildlife Service; ITS = Incidental Take Statement; MSO = Mexican 24 Spotted Owl; RP = Recovery Plan; RRP = Revised Recovery Plan; RPM = Reasonable and Prudent Measure; S&Gs = Standards and Guidelines; PAC = Protected Activity Centers; 25 USFS = United States Forest Service. 26 27 Case 4:13-cv-00151-RCC Document 89 Filed 09/12/19 Page 2 of 39

arbitrary and capricious in violation of the Endangered Species Act (“ESA”). (Doc. 10.)2 1 Plaintiff contends that Defendants’ inability to monitor the MSO makes the conclusions in 2 the 2012 BiOps faulty, and the resulting incidental take statement invalid. Id. 3 Currently before the Court are the parties’ cross-motions for summary judgment. 4 (Docs. 50, 52.) Plaintiff seeks declaratory and injunctive relief against Defendants, 5 including: (1) an order enjoining all USFS management actions in Region 3 national 6 forests3 that are non-compliant and (2) an order requiring re-initiation of ESA Section

7 7(a)(2) formal consultation. (Doc. 10 at 34-35.)

8 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 9 record, the Court will grant Plaintiff’s Motion for Summary Judgment insofar as it alleges 10 the BiOps violate the ESA because the jeopardy analysis fails to account for recovery of 11 the MSO; and grant Defendants’ Cross-Motion for Summary Judgment in part. 12 STATUTORY AND REGULATORY BACKGROUND 13 A. Statutory Framework: The Endangered Species Act 14 The ESA, 16 U.S.C. § 1531, et seq., “is a comprehensive scheme with the broad 15 purpose of protecting endangered and threatened species.” Ctr. for Biological Diversity v. 16 U.S. Bureau of Land Mgmt. (“CBD v. USBLM”), 698 F.3d 1101, 1106 (9th Cir. 2012) 17 (citation and quotation marks omitted); see also 16 U.S.C. § 1531. When enacting the ESA,

18 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, 19 “the ESA was enacted not merely to forestall the extinction of the species (i.e., promote 20 species survival), but to allow a species to recover to the point where it may be delisted.” 21 Gifford Pinchot Task Force v. U.S. Fish & Wildlife Serv., 378 F.3d 1059, 1070 (9th Cir. 22

23 2 Citations to Court documents reference the page numbers generated by ECF. Citations to the Administrative Record reference the records’ Bates stamp number. 24 3 There are eleven national forests in Arizona which constitute USFS Region 3: Apache– Sitegreaves, Coconino, Coronado, Kaibob, Prescott, Carson, Cibola, Gila, Lincoln, Tonto, 25 and Gila. 26 -2- 27 Case 4:13-cv-00151-RCC Document 89 Filed 09/12/19 Page 3 of 39

2004). 1 To address these concerns, the ESA imposes procedural and substantive duties on 2 some federal agencies. Forest Guardians v. Johanns, 450 F.3d 455, 457 (9th Cir 2006). 3 These duties are as follows: 4 1. Recovery Plan 5 When a species is listed as threatened or endangered, ESA Section 4(f) mandates 6 the development and implementation of a Recovery Plan (“RP”). 16 U.S.C. § 1533(f)(1).

7 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 8 detail how the FWS can determine whether a species should be delisted, id. § 9 1533(f)(1)(B)(ii), the timeline for the implementation of these measures, as well as the 10 approximate cost, id. § 1533(f)(1)(B)(iii). RPs serve as guidance for recovery, but do not 11 create legally enforceable duties. See Fund for Animals v. Rice, 85 F.3d 535, 548 (11th Cir. 12 1996); Cal. Native Plant Soc’y v. EPA, No. C06-03604 MJJ, 2007 WL 2021796, at *21 n.7 13 (N.D. Cal. Jul. 10, 2007); Grand Canyon Tr. v. Norton, No. 04-CV-636PHXFJM, 2006 14 WL 167560, at *2 (D. Ariz. Jan. 18, 2006).

15 2. Informal Consultation and Biological Assessment

16 “Procedurally, before initiating any action in an area that contains endangered or

17 threatened land-based species,” federal action agencies (in this instance, USFS) must informally consult with the appropriate consulting agency (in this instance, FWS) “to 18 determine the likely effects of any proposed action on the species and its critical habitat.” 19 Conservation Cong. v. U.S. Forest Serv., 720 F.3d 1048, 1051 (9th Cir. 2013) (citing Nat. 20 Res. Defense Council v. Houston, 146 F.3d 1118, 11126 (9th Cir. 1998)). If a listed species 21 may be present in an action area, the action agency must create a Biological Assessment. 22 16 U.S.C. § 1536(c)(1). This is used to determine whether to engage in formal consultation 23 or in “formulating a biological opinion.” 50 C.F.R. §§ 402.12(k)(1)-(2). 24 /// 25

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3. Formal Consultation and Biological Opinion 1 If an action agency finds that an action may affect a listed species or its habitat under 2 the ESA, the action agency must typically initiate a formal consultation with the 3 appropriate consulting agency. 50 C.F.R. §§ 402.14(a)-(c). The formal consultation process 4 culminates in the FWS’ production of a BiOp that advises the action agency as to whether 5 the proposed action, either alone or in combination with other effects, would endanger the

6 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 7 be reviewed by the District Court. Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 8 524 F.3d 917, 925 (9th Cir. 2008). 9 a. Jeopardy Opinion 10 The BiOp must decide whether or not an agency action jeopardizes the listed 11 species and then issue a “jeopardy” or “no jeopardy” opinion, 50 C.F.R. § 402.14(h)(3), 12 based on “the best scientific and commercial data available,” 16 U.S.C. § 1536(a)(2). An 13 action that jeopardizes a species is one that “reduce[s] appreciably the likelihood of both

14 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 15 issues, the BiOp must also include reasonable and prudent alternatives (“RPA”) to promote 16 the listed species’ continued existence. 50 C.F.R. § 402.14(h)(3). 17 b. Incidental Take Statement 18 The ESA imposes a substantive duty upon the action agency to “take” listed species 19 only in specified instances. 16 U.S.C. § 1535(a)(2). “Take” means “to harass, harm, pursue, 20 hunt, shoot, wound, kill, trap, capture, or collect” a protected species “or to attempt to

21 engage in any such conduct.” Id. § 1532(19).

22 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 23 members of a listed species, FWS must issue an incidental take statement (“ITS”). 16 24 U.S.C. § 1536(b)(4); 50 C.F.R. § 402.14(i). The ITS must articulate: (1) the amount or 25

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extent of the incidental take on the species, (2) “reasonable and prudent measures” 1 (“RPMs”) needed to minimize the amount or extent of take, and (3) the “terms and 2 conditions” that the action agency must follow to implement the RPMs. 16 U.S.C. §§ 3 1536(b)(4)(i)-(iv). Take is permissible if it complies with the ITS’ terms and conditions. 4 Id. § 1536(o)(2). However, action agencies like the USFS must reinitiate consultation if 5 the specified level of take is exceeded, 50 C.F.R. § 402.14(i)(4), or if the action considered

6 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). 7 4. Independent Obligation to Avoid Excess Take 8 Finally, ESA Section 7 imposes an independent and continuing obligation upon 9 action agencies to avoid taking action that would jeopardize the existence of a listed species 10 or adversely modify its habitat. 16 U.S.C. § 1536(a)(2); Pyramid Lake Paiute Tribe of 11 Indians v. U.S. Dep’t of the Navy, 898 F.2d 1410, 1415 (9th Cir. 1990). Therefore, the 12 action agency cannot be relieved of its duty to adhere to the ESA simply through 13 compliance with the BiOp; it has an independent duty to ensure that its reliance on a BiOp

14 is not arbitrary or capricious. Id.; Wild Fish Conservancy v. Salazar, 628 F.3d 513, 532 (9th Cir. 2010). 15 HISTORICAL BACKGROUND 16 A. The Mexican Spotted Owl 17 On March 16, 1993, FWS listed the MSO as a “threatened” species under the ESA. 18 USFS 1. At the time of listing, FWS determined that most of the MSOs known to exist 19 were found on national forest lands. See USFS 71. The listing decision acknowledged that, 20 due to the MSO’s secretive nature, no historic or current MSO population data existed.

21 USFS 1; FWS 7902-06. What was known includes that MSOs nest and forage in canyons

22 and on mountains with mature-growth forests consisting primarily of high, enclosed, thick, multilayered canopies with uneven-aged tree stands. USFS 1-2. 23 In the listing, FWS discussed threats to the MSO’s habitat or range, including an 24 estimate that historically, 1,037,000 acres of MSO habitat had been converted from suitable 25

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to “unsuitable . . . [but] capable of becoming suitable . . . sometime in the future.” USFS 1 19. Over seventy-five percent of that conversion was attributed to “human activities 2 (primarily timber harvest)” and over twenty-one percent to “natural causes (primarily 3 fire).” Id. FWS explained how historic and contemporary timber management practices, 4 specifically even-aged silviculture,4 compromised the MSO’s habitat. USFS 20. FWS 5 surmised that, under the then-existing USFS’ Forest Plans5 for Region 3, such timber

6 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 7 constant.” USFS 22. In essence, the primary dangers to the survival of the MSO were (1) 8 timber practices and (2) severe wildfires. USFS 20. 9 1. The 1995 MSO Recovery Plan 10 At the same time as the listing, the FWS Southwestern Regional Director appointed 11 a team to develop a species RP. USFS 43. FWS approved the team’s resulting 1995 RP. 12 USFS 30. The 1995 RP’s Executive Summary explained the purpose of the RP was to 13 “outline the steps necessary to remove the [MSO] from the list of threatened species.” 14 USFS 43. To address the primary concerns of timber management and wildfires, the 1995

15 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 16 conditions for foraging and dispersal.” USFS 133. 17 To encourage population growth, the Recovery Team created an “adaptive 18 management” plan. USFS 133-34. FWS described adaptive management as a flexible 19 process that would be refined as data was received through implementation of the 20

21 4 Silviculture is “the practice of controlling the establishment, composition, and growth of forests.” FWS R 172. At listing, timber management practices included even-aged 22 silviculture. USFS 115, 380. This method “tended to simplify stand structure and harvest a disproportionate share of large trees,” USFS 115, which “can conflict with MSO habitat needs.” USFS 380. 23 5 National forest lands are managed by USFS pursuant to the National Forest Management Act. The Act directs the USFS to prepare Forest Plans—also referred to as Land and 24 Resource Management Plans—to govern its activities in each national forest unit. 16 U.S.C. § 1604(a). Site-specific projects and activities must be consistent with an approved 25 Forest Plan. 16 U.S.C. § 1604(i). 26 -6- 27 Case 4:13-cv-00151-RCC Document 89 Filed 09/12/19 Page 7 of 39

management model and monitoring. USFS 9934 SUP1. Visually, the adaptive management 1 plan was pictured as a three-legged stool, supported equally by population monitoring, 2 habitat monitoring, and management recommendations. USFS 134-35. Members of the 3 recovery team stated, “[l]ike a stool, if any one of the legs were removed, the recovery plan 4 would fail.” USFS 1006. 5 The timeline for the 1995 RP was limited to between ten and fifteen years, at which 6 time it was anticipated that the monitoring protocol in the 1995 RP may enable the delisting

7 of the MSO. USFS 109. Over twenty years later, delisting has not occurred, and information about the current MSO population is still minimal. 8 2. The 1996 Amendment to the USFS Forest Plan 9 In May 1996, FWS released a region-wide amendment to the Forest Plans that 10 incorporated the recommendations from the 1995 RP. USFS 380; USFS 2338. It also 11 incorporated the 1996 Standards and Guidelines (“1996 S&Gs”), which committed USFS 12 to protecting MSOs by (1) creating Protected Activity Centers (“PACs”)6 and restricted 13 sites, (2) implementing fuels reduction management, and (3) encouraging MSO habitat by

14 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 15 areas. USFS 466. The USFS’ adoption of the 1996 Amended Forest Plan meant that all 16 USFS actions must be consistent with the Forest Plans’ terms. See 16 U.S.C. § 1604(i). 17 3. 1996 BiOp 18 Two BiOps were produced following the 1995 RP. USFS 633-696, 697-736. The 19 first BiOp contemplated not incorporating the 1996 S&Gs and led to a jeopardy opinion. 20 USFS 633-696. The second BiOp, adopted by FWS, incorporated the adaptive 21 management approach and the 1996 S&Gs, and concluded that USFS forest management 22 programs did not jeopardize the MSO. USFS 724. 23 /// 24 6 PACs are, at minimum, 600-acre areas surrounding a known MSO habitat, an MSO 25 nesting site, or areas of forest that meet requirements for an MSO habitat. FWS R 108. 26 -7- 27 Case 4:13-cv-00151-RCC Document 89 Filed 09/12/19 Page 8 of 39

4. 2005 BiOp 1 FWS and USFS subsequently reinitiated another Section 7(a)(2) formal consultation 2 about USFS’ timber management. FWS R 8920. The findings from the consultation led to 3 the 2005 BiOp. The 2005 BiOp contained an admission that “no long-term monitoring has 4 been initiated pursuant to the [MSO] Recovery Plan.” USFS 2339. FWS also admitted in 5 the 2005 BiOp that due to inadequate monitoring methods, existing MSO population data 6 was unreliable and limited. USFS 2300. But, of the sparse information available, it

7 appeared the MSO population was declining. Id. Nonetheless, like its predecessor, the 2005 BiOp produced a no-jeopardy opinion. USFS 2338. 8 5. 2011 Biological Assessment 9 Defendants later reinitiated formal consultation due to concerns that USFS may 10 exceed permissible take. FWS 6973. FWS then created a Biological Assessment discussing 11 the plausible effects of the current Forest Plans on MSOs. FWS 6947. The Biological 12 Assessment was divided into eleven subsections based on national forests. FWS 6974. The 13 assessment explained that USFS management direction may adversely affect the MSO 14 population and habitat. See e.g., FWS 7460. This assessment led to the 2012 BiOps. 15 6. The 2012 BiOps

16 The 2012 BiOps were similar to previous iterations. First, each BiOp issued a no-

17 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 18 the earlier BiOps and the 2012 version was that the latter BiOps were divided on a forest- 19 by-forest basis. This resulted in eleven BiOps tailored to each national forest. See Apache 20 Sitegreaves, FWS 7561; Carson, FWS 7791; Cibola FWS 7839; Coconino, FWS 7889; 21 Coronado, FWS 8085; Gila, FWS 8435; Kaibob, FWS 8662; Lincoln, FWS 8708; Prescott, 22 FWS 8786; Santa Fe, FWS 8913; Tonto, FWS 8960. 23 a. Timber Management and Wildfire 24 The BiOps indicated that timber harvesting techniques had shifted, reducing the 25

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threat of loss of habitat due to timber management. FWS 8929. Even so, the other 1 significant threat—stand-replacing wildfires—was greater than ever. Id. 2 b. Incidental Take Statement and Population Monitoring 3 FWS admitted in the BiOps that determining individual take was not plausible 4 because population monitoring had not occurred. See e.g., FWS 8940. In lieu of individual 5 monitoring, which FWS found to be cost prohibitive and logistically difficult, the 2012 6 BiOps allowed USFS to determine incidental take by measuring PACs. Id. 7 The BiOps touched on a Draft Revised Recovery Plan outlining a possible 8 monitoring procedure to ascertain MSO population trends. FWS 8939. The BiOps,

9 however, did not describe the plan or specifically incorporate the plan. The BiOps did state that the ITS “attempt[ed] to provide for a level of project-specific implementation 10 monitoring at the individual [BiOp] level in order to assess incidental take associated with 11 a site-specific action.” FWS 8940. 12 FWS concluded that USFS’ actions would not jeopardize the MSO because they 13 were consistent with the concerns leading to the MSO’s listing. FWS 8938-39. 14 7. The 2012 Recovery Plan and Revision 15 a. Population Monitoring 16 In June 2011, prior to the issuance of the 2012 BiOps, FWS issued a Draft Recovery 17 Plan for the MSO. FWS R 443. Later, a Revised RP (“2012 Revised RP”) issued. USFS 18 9534 SUP. The goals listed in the 2012 Revised RP focused on five strategies for improving 19 the MSO population: “1) protecting existing populations; 2) managing for habitat into the

20 future; 3) managing threats; 4) monitoring population and habitat; and 5) building partnerships to help facilitate recovery.” USFS 9540 SUP 1. 21 In the 2012 Revised RP, FWS reiterated that there were few population studies 22 currently available, the data was limited, and the size and procedures implemented were 23 varied. USFS 9585 SUP. Therefore, it was difficult to accurately estimate MSO population 24 trends. USFS 9585 SUP (“[R]ange-wide conclusions cannot be reliably inferred from the 25

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limited data available.”). 1 Furthermore, while the FWS noted in the 2012 Revised RP that there was an 2 increase in PACs, it conceded that this increase was likely due to new survey areas, and 3 “an increase in abundance cannot be inferred from these data.” USFS 9539 SUP. 4 Nonetheless, the FWS acknowledged that population monitoring was crucial to 5 track recovery and for eventual delisting. USFS 9540, 9542, 9623 SUP. To delist, the 2012 6 Revised RP suggested a combination of managing the MSOs’ habitat and “vigilant 7 monitoring.” USFS 9540 SUP. But, the FWS admitted that it was impossible to meet the

8 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 9 surveying of owl occupancy at randomly selected, fixed sites. USFS 9542 SUP. 10 B. Plaintiff’s Complaint and Cross-Motions for Summary Judgment 11 The case before the Court concerns Plaintiff’s challenges to six of the FWS’ 2012 12 BiOps. In each BiOp, the FWS determined that USFS’ proposed programmatic 13 management direction was (1) not likely to jeopardize the continued existence of the MSO 14 and (2) not likely to destroy or adversely modify the MSO’s designated critical habitat.7 15 As a result, each BiOp also contains an ITS. These ITSs specify the authorized amount of 16 MSO take by way of a surrogate rather than numerical caps. USFS 6797. 17 As discussed below, Plaintiff alleges the FWS’ 2012 BiOps and their various 18 subparts are arbitrary and capricious in various ways. Defendants argue the BiOps are

19 reasoned. Both seek summary judgment in their favor.

20 7 The Court had great difficulty making sense of the parties’ citations to the record. 21 Defendants’ briefs did not cite to the statement of facts, but directly to the administrative record in violation of Local Rule 56.1(e). Furthermore, FWS page numbers did not have 22 the FWS Bates stamp as indicated. The administrative record was also filed out of order, forcing the Court to search throughout the entire record to locate Bates stamp numbers. 23 Some citations are to Bates Stamp USFS, others to the exact same record in Bates Stamp FWS. In addition, one party refers to part of the administrative record as USFS # SUP, the other simply labels it USFS. To complicate matters, the pleadings draw support from BiOps 24 that are now moot, so the Court had to locate the equivalent contentions in other similar BiOps. The Court asks the parties to consider organizing the record in a more efficient 25 manner and citing consistently in any future litigation. 26 - 10 - 27 Case 4:13-cv-00151-RCC Document 89 Filed 09/12/19 Page 11 of 39

STANDARD OF REVIEW 1 A. Scope of Judicial Review 2 The District Court’s review in ESA litigation is limited to “the administrative record 3 already in existence, not some new record made initially in the reviewing court.” Camp v. 4 Pitts, 411 U.S. 138, 142 (1973). If the court finds the record is insufficient to support the 5 agency’s action, “the proper course, except in rare circumstances, is to remand to the 6 agency for additional investigation or explanation. The reviewing court is not generally 7 empowered to conduct a de novo inquiry . . . and to reach its own conclusions based on

8 such an inquiry.” Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985).

9 B. Summary Judgment

10 “Summary judgment is a particularly appropriate tool for resolving claims challenging agency action.” Defenders of Wildlife v. Salazar, 729 F. Supp. 2d 1207, 1215 11 (D. Mont. 2010). When the facts are not disputed, upon summary judgment, a court must 12 “determine whether or not as a matter of law the evidence in the administrative record 13 permitted the agency to make the decision it did.” Occidental Eng’g Co. v. INS, 753 F.2d 14 766, 769 (9th Cir. 1985). The Court finds the administrative record establishes the facts 15 necessary for judicial review, and it may render an opinion as a matter of law. See id. 16 C. Administrative Procedure Act 17 Agency decisions under the ESA are governed by the Administrative Procedure Act 18 (“APA”), and for summary judgment, “the review is not a determination of whether there 19 is any genuine issue as to any material fact . . . , but rather whether the agency action was

20 arbitrary, capricious, an abuse of discretion, not in accordance with law, or unsupported by substantial evidence on the record taken as a whole.” Good Samaritan Hosp., Corvallis v. 21 Mathews, 609 F.2d 949, 951 (9th Cir. 1979) (citing 5 U.S.C. § 706(2)). 22 “Review under the arbitrary and capricious standard is deferential.” Nat’l Ass’n of 23 Home Builders v. Defs. of Wildlife, 551 U.S. 644, 658 (2007). The reviewing court’s “role 24 is simply to ensure that the [agency] made no ‘clear error of judgment’ that would render 25

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its action ‘arbitrary and capricious.’” Lands Council v. McNair, 537 F.3d 981, 993 (9th Cir. 1 2008) (en banc), overruled on other grounds by Winter v. Nat. Res. Def. Council, 555 U.S. 2 7 (2008). A decision is not arbitrary and capricious when “‘a rational connection [exists] 3 between facts found and conclusions made’ by the defendant agencies.” Conservation 4 Cong. v. Finley, 774 F.3d 611, 617 (9th Cir. 2014) (quoting League of Wilderness 5 Defs./Blue Mountains Biodiversity Project v. Connaughton, 752 F.3d 755, 760 (9th Cir.

6 2014)). Accordingly, a reviewing court should “not vacate an agency’s decision unless” the agency “has relied on factors which Congress had not intended it to consider,” ignored 7 “an important aspect of the problem,” explained its decision with no support from the 8 evidence available, or “is so implausible that it could not be ascribed to a difference in view 9 or the product of agency expertise.” Nat’l Ass’n of Home Builders, 551 U.S. at 658 (quoting 10 Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 11 (1983)). Where the agency has relied on “relevant evidence [such that] a reasonable mind 12 might accept as adequate to support a conclusion,” its decision is supported by “substantial 13 evidence.” Bear Lake Watch, Inc. v. Fed. Energy Regulatory Comm’n, 324 F.3d 1071,

14 1076 (9th Cir. 2003).

15 Moreover, review under the arbitrary and capricious standard requires courts to “be “most deferential” when agencies make determinations within areas of special expertise. 16 Forest Guardians v. U.S. Forest Serv. (“FG v. USFS”), 329 F.3d 1089, 1099 (9th Cir. 17 2003)). A court may not “substitute [its] judgment for the agency’s in determining which 18 scientific data to credit, so long as the [agency’s] conclusion is supported by adequate and 19 reliable data.” Finley, 774 F.3d at 620. 20 Plaintiff’s first and second claims are brought against FWS under the APA. (Doc. 21 10; Doc. 36 at 2, n.1.) The final agency actions Plaintiff challenges are the remaining 2012 22 BiOps and ITSs. (Doc. 10 at 6, n.2; 30-32, ¶¶112-115.)

23 D. Claims Under the ESA’s Citizen-Suit Provision 24 The ESA’s citizen-suit provision empowers “any person” to “commence a civil suit

25 on his own behalf” against “the Secretary where there is alleged a failure of the Secretary

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to perform any act or duty under section 1533 . . . which is not discretionary.” 16 U.S.C. § 1 1540(g)(1)(C). The duties of the Secretary are delegated to FWS under 50 C.F.R. § 2 402.01(b). 3 FWS issues regulations to protect a species once it is listed as threatened. 16 U.S.C. 4 § 1533(c); Ctr. for Biological Diversity v. U.S. Forest Serv., 820 F. Supp. 2d 1029, 1032 5 (D. Ariz. 2011). FWS can create regulations preventing action that may negatively impact

6 a listed species. 16 U.S.C. § 1533(d). By statute, it is unlawful to violate any regulation established by FWS pertaining to any threatened species. 16 U.S.C. § 1538(a)(1). 7 “Irrespective of whether an ESA claim is brought under the APA or the citizen-suit 8 provision, the APA’s ‘arbitrary and capricious’ standard applies.” W. Watersheds Project 9 v. Kraayenbrink, 632 F.3d 472, 481 (9th Cir. 2011). 10 Plaintiff’s third, fourth, fifth, sixth, seventh, and eighth claims are brought against 11 the USFS under the citizen-suit provision for violations of statutory provisions regarding 12 threatened species. These claims assert that USFS violated various statutory duties 13 prescribed by the FWS. (Doc. 10.)

14 DISCUSSION8

15 A. Moot Claims

16 “A federal court does not have jurisdiction to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter 17 in issue in the case before it.” Am. Rivers v. Nat’l Marine Fisheries Serv., 126 F.3d 1118, 18 1123 (9th Cir. 1997) (citation and quotation marks omitted). An issue is moot and must be 19 dismissed when “an event occurs that prevents the court from granting effective relief.” Id. 20 The Court previously ruled that Plaintiff’s claims as they relate to five of the original 21 eleven disputed BiOps are now moot: those pertaining to the Kaibab, Prescott, Apache- 22 Sitegreaves, Coconino, and Coronado national forests. (See Doc. 62-1 at 4, n.3; Doc. 70 at

23 3, 4; Doc. 76.) Therefore, the Court addresses only the remaining six BiOps: the March 30,

24 8 For simplicity, when citing to the Administrative Record, the Court cites to only one BiOp 25 even though all BiOps contain similar propositions. 26 - 13 - 27 Case 4:13-cv-00151-RCC Document 89 Filed 09/12/19 Page 14 of 39

2012 BiOps for the Lincoln, Santa Fe, Cibola, and Carson national forests, and the April 1 30, 2012 BiOps for the Tonto and Gila national forests (collectively the “2012 BiOps”). 2 B. FWS’ Continued Implementation of the 1996 S&Gs 3 Plaintiff first argues the 2012 BiOps are arbitrary and capricious because: (1) the 4 “no jeopardy” conclusions rely upon a key assumption that USFS would continue to 5 implement the 1996 S&Gs which include, in relevant part, MSO population trend 6 monitoring requirements; and (2) the administrative record establishes that Defendants

7 knew when the BiOps were issued that USFS had never, in fact, engaged in MSO population monitoring (and had yet to formulate a plan for acquiring MSO population trend 8 data). (Doc. 50 at 9-15.) Plaintiff also argues that the adaptive management plan and 1996 9 S&Gs became mandatory upon their incorporation into the Forest Plan. Id. at 16. Because, 10 Plaintiff asserts, Defendants never had any intention of following the Forest Plan, the 2012 11 BiOps are unfounded, arbitrary and capricious. Id. at 19. 12 Defendants retort that Plaintiff’s argument mischaracterizes the 1996 S&Gs, is not 13 supported by the administrative record, and baselessly concludes that the FWS’ “no 14 jeopardy” conclusions were predicated on an assurance that USFS had or would engage in 15 range-wide population trend monitoring. (Doc. 58 at 4-10.) First, according to Defendants,

16 the 1995 RP is merely advisory. (Doc. 52-1 at 3; Doc. 56 at 31.) Next, Defendants contend that range-wide monitoring of the MSO population was not required for compliance with 17 the adaptive management plan. (Doc. 52-1 at 5-6.) This is purportedly because range-wide 18 population data is not a helpful way to evaluate the local effect of USFS’ actions on MSOs. 19 Id. Moreover, Defendants say, USFS cannot be held accountable for the failure to monitor, 20 because it was only required to collaborate about possible monitoring measures. Id. at 6-7. 21 Furthermore, FWS states that range-wide monitoring is used to determine whether a 22 species should be delisted, not to determine jeopardy. To evaluate jeopardy, FWS only

23 needed to analyze the extent to which management actions were in line with the Forest

24 Plans’ protective measures. Id. at 10. These protective measures were aimed at resolving the problems which led to the MSOs’ listing: the threat of severe wildfire and harmful 25

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timber management. Id. at 8. USFS asserts that its actions comply with Section 7 1 requirements because they (1) implement monitoring before and after agency management 2 projects; (2) conduct uneven-age timber management; (3) form management projects that 3 reduce landscape-altering wildfire; and (4) determine incidental take at site-specific 4 projects. Id. at 6. 5 1. Whether 1996 S&Gs are Mandatory 6 Recovery Plans by themselves are merely advisory. See Fund for Animals, 85 F.3d 7 at 548; Or. Nat. Res. Council v. Turner, 863 F. Supp. 1277, 1284 (D. Or. 1994). “However,

8 where an otherwise advisory document has been clearly incorporated into a Forest Plan or other binding document, its requirements become mandatory.” Ecology Ctr. v. Castaneda, 9 574 F.3d 652, 660 (9th Cir. 2009). By incorporating the 1995 Revised RP and the 1996 10 S&Gs into the Forest Plan, FWS made these documents mandatory. But to determine 11 whether either required range-wide MSO population monitoring, the Court enquires into 12 whether the plain language in the provision is cast in mandatory language such as “must” 13 or “shall” rather than “may” or “can.” Ecology Ctr. v. Castaneda, 574 F.3d 652, 661 (9th 14 Cir. 2009); cf. Doc. 79-7 at 203 (1996 S&Gs state “[t]he terms ‘should’ and ‘best’ [in the 15 Guidelines] imply some discretion on the part of the person implementing the guideline”).

16 The 1996 S&Gs, found within the 1995 RP, state that “the Standards contain no

17 discretionary elements.” USFS 466. One of the Standards requires a “[s]urvey of all potential [MSO] areas including protected, restricted, and other forest and woodland types 18 within an analysis area plus the area ½ mile beyond the perimeter of the proposed treatment 19 area.” Id. Another Standard indicates the person implementing the Guidelines is to 20 “[m]onitor changes in owl populations and habitat needed for delisting.” USFS 467 21 (emphasis added). 22 The language in the S&Gs suggests its surveys and monitoring provisions are 23 mandatory. This monitoring appears to be utilized for two purposes: (1) to evaluate the 24 presence of MSOs surrounding an USFS treatment area, and (2) to obtain overall 25 population information for delisting. With these dual purposes in mind, the Court turns to

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the history of FWS’ compliance with the 1996 S&Gs. 1 2. Prior Litigation: Adaptive Management Consistent with 1996 S&Gs. 2 Defendants claim that Plaintiff’s arguments are simply a reconstituted version of 3 prior litigation wherein the District Court determined that USFS actions were in line with 4 the 1996 S&Gs. (Doc. 58 at 7 (citing WildEarth Guardians v. USFS/FWS (“WildEarth I”), 5 Doc. 81 at 20, No. 10-385-DCB (D. Ariz. Oct. 11, 2011)).) 6 In Center for Biological Diversity v. U.S. Forest Serv., 820 F.Supp.2d at 1029, 7 District Judge David C. Bury issued a preliminary injunction against Defendants because 8 FWS had failed to designate critical habitat for the MSO as required in the FWS Forest

9 Plan and excluded unoccupied MSO habitat from consideration, therefore violating the ESA. Concomitant with this ruling and based on the same administrative record, the judge 10 issued an opinion in WildEarth I, No. CV-10-385-DCB, Doc. 81. As in the instant case, 11 Plaintiff argued there that agency actions were not in compliance with the 1996 S&Gs. Id. 12 at 8, 10. When formulating the 2005 BiOp, Plaintiff claimed FWS knew it would not 13 implement the rigorous population monitoring required by RPM3 of the ITS. Id. RPM3 14 directed that the action agency must “monitor [MSO] occupancy on National Forest 15 System lands, pursuant to the most current approved [MSO] Recovery Plan.” USFS 2341. 16 First, Judge Bury concluded that there was enough evidence in the record to find 17 that “the MSO [adaptive] management approach implemented by the USFS [was]

18 consistent with the S&Gs, as amended in 1996.” Wildearth I, No. CV-10-385-DCB, Doc. 81 at 20. He decided that, in addition to data that indicated the MSO population “seems not 19 only to be stable, but possibly expanding,” the increase in PACs was evidence that the FWS 20 management approach was “effective in protecting the MSO and its habitat.” (Id. at 20; 21 Doc. 83 at 2.) However, the District Judge made no conclusions about the recovery of the 22 MSO, partially because the only relief he could have granted would be to send Defendants 23 back to formal consultation, which they were already doing, and so any measures he took 24 would be moot. Wildearth I, No. CV-10-385-DCB, Doc. 81 at 18. This formal consultation 25 was supposed to address the monitoring problems and “the superseding BiOp and its ITS

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could change substantially or do away with [the monitoring] RPM altogether.” Id. 1 The 2012 BiOps did replace the language from RPM3; the RPM in the newer 2012 2 BiOps limits monitoring to “site-specific projects implemented under the [Forest Plan] on 3 the MSO.” USFS 6978. 4 In this case, Plaintiff makes similar yet distinguishable arguments. Plaintiff attempts 5 to force compliance with the monitoring recommendations in the 1996 S&Gs by asserting 6 that incorporating the 1995 RP into the Forest Plan means that the 1996 S&Gs were 7 mandatory. Further, Plaintiff contends that the 1996 S&Gs and the adaptative management

8 plan require range-wide population monitoring. Therefore, Defendants failure to conduct such monitoring makes the BiOps noncompliant with the mandatory terms, and 9 Defendants’ reliance on these BiOps arbitrary and capricious. Judge Bury has already 10 determined that the adaptive management plan aligns with the 1996 RP and S&Gs; the 11 Court will not reassess this issue. However, since Judge Bury did not directly address the 12 issue, the Court will now look at whether FWS violated the ESA when coming to a “no 13 jeopardy” conclusion in the subsequent 2012 BiOps. 14 C. “No Jeopardy” Determination and Survival of MSO 15 Plaintiff takes issue with the evidentiary basis underlying FWS’ “no jeopardy” 16 determinations and complains that they were premised upon an “irrational” finding that the 17 MSO population has not declined since it was listed. (Doc. 50 at 22.) According to Plaintiff,

18 such finding was unsupported because (1) it relied on an increase of known PACs rather than an increase in MSOs, and (2) it disregarded available scientific data showing an MSO 19 population decline. (Id.) 20 FWS contends that the jeopardy determination was not dependent “on the 21 assumption of a fully funded and implemented population trend monitoring program.” 22 (Doc. 58 at 10, n.2.) Instead, it looked at a variety of concerns, including the major issues 23 leading to the MSOs’ listing, and determined USFS programs would not adversely affect 24 the MSO and its habitat. (Id. at 8; Doc. 52-1 at 10.) Moreover, FWS considered the data 25

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available—both positive and negative—and determined that it was not dependable. (Doc. 1 58 at 11.) Because the data was flawed in various respects, the best evidence about 2 population was the known increase in PACs. (Id.) 3 An action causes jeopardy to a species when it negatively impacts survival and 4 recovery “by reducing the reproduction, numbers, or distribution of that species.” 50 C.F.R. 5 § 402.02. When determining jeopardy “the consulting agency evaluates ‘the current status 6 of the listed species or critical habitat,’ the ‘effects of the action,’ and ‘cumulative effects.’”

7 Nat. Wildlife Fed’n v. Nat. Marine Fisheries Serv., 524 F.3d 917, 924 (9th Cir. 2008) (quoting 50 C.F.R. § 402.14(g)). An agency must base its actions on “the best scientific . . 8 . data available.” 50 C.F.R. § 402.14(g)(8); 16 U.S.C. § 1536(a)(2). What constitutes the 9 “best scientific data available” is left to the agency’s “special expertise.” Baltimore Gas & 10 Elec. Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87, 103 (1983). The agency “may not 11 base its listings on speculation and surmise.” Alaska Oil & Gas Ass’n v. Jewell, 815 F.3d 12 544, 555 (9th Cir. 2016). In addition, “FWS cannot ignore available biological 13 information.” Ctr. for Biological Diversity v. Salazar, 804 F. Supp. 2d 987, 1008 (D. Ariz. 14 2011) (quoting Connor v. Burford, 848 F.2d 1441, 1454 (9th Cir. 1988)). However, where

15 the information is not readily available, courts cannot insist on perfection: “[T]he ‘best scientific . . . data available,’” does not mean “the best scientific data possible.” Building 16 Indus. Ass’n v. Norton, 247 F.3d 1241, 1246 (D.C. Cir. 2001). 17 Defendants conducted a Section 7(a)(2) consultation to determine whether the 18 enactment of the Forest Plans would jeopardize or adversely modify MSO habitat. FWS 19 8938. The conclusion was no. Id. To address the timber management and severe wildfire 20 concerns that resulted in the MSOs’ listing, FWS previously suggested: engaging in 21 uneven-aged silviculture and other timber management methods, creating PACs and 22 restricted areas for MSOs, producing replacement habitat, and surveying and monitoring

23 before and after USFS action, among others. USFS 466-470. When deciding jeopardy,

24 FWS looked at whether the Forest Plans implemented these measures and determined that because agency actions were addressing these concerns and proposed solutions, the Forest 25

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Plans were not likely to appreciably reduce the MSO population or impact its habitat. FWS 1 7811, 8938-39. 2 Furthermore, the jeopardy determination acknowledged the current limitations of 3 monitoring and found that without credible data on population, it was assumed that “an 4 increase in the number of areas considered to be occupied to be a positive indicator 5 regarding MSO population numbers.” USFS 7806. FWS admitted that the current 6 population is ultimately unknown because the MSO is secretive and current survey data is

7 not reliable. USFS 5641, 5650. But since 2005, there was an increased number of known PACs, though FWS conceded that the increase in PACs was likely due to MSO surveys in 8 new areas. FWS 8939; USFS 7806. 9 FWS considered both positive and negative MSO population data. Plaintiff contends 10 that FWS ignored the best available evidence indicating a 30 percent decline in population 11 since listing. USFS 9770 SUP. Yet, the studies Plaintiff mentions also included indications 12 of a stable population. USFS 9771 SUP (“generally stable or slightly declining”); USFS 13 9772 (“results suggest current management practices . . . have been adequate for protecting 14 owls”). In addition, these citations express the same sentiment as the 2012 BiOPs that data 15 was simply inconclusive: the study methods differed, and surveys were too few and of too

16 limited a duration to elicit reliable population trend data. USFS 9770 SUP. These issues constrained FWS’ ability to “quantify trends in [MSO] abundance and population change.” 17 Id. 18 FWS also admitted that the historic lack of population monitoring limited its ability 19 to accurately estimate the current population. In an earlier draft of the 2012 BiOp, FWS 20 admitted it was impossible to know conclusively the current status of the MSO without 21 range-wide population monitoring. FWS 7816. But, FWS believed monitoring of site- 22 specific projects before and after agency action may permit assessment of how agency 23 action directly affects the PACs in the specific action area. Id. 24 Contrary to Plaintiff’s contention, the BiOps did not say the jeopardy analysis was 25 based on an increase in population, but rather “no decline.” FWS 8939. There is substantial

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evidence supporting this assertion. In short, FWS’ determination that USFS’ actions would 1 not jeopardize the continued existence of the MSO or adversely affect its habitat was not 2 dependent upon a finding that the MSO population was increasing, or a requirement that 3 USFS conduct range-wide population monitoring. The Court finds the determination was 4 not arbitrary or capricious. This does not, however, answer whether the jeopardy analysis 5 adequately assessed recovery.

6 D. Impact of USFS’ Forest Plans on MSO’s Recovery

7 Plaintiff contends that FWS’ jeopardy determination failed to account for MSO

8 recovery. (Doc. 50 at 21-23.) Defendants say that the BiOps consider recovery because the Forest Plans confronted the threats to the MSO and compliance would help increase habitat 9 which in turn helps the MSO recover. (Doc. 58 at 18.) 10 The jeopardy analysis must consider both survival and recovery. Nat’l Wildlife 11 Fed’n, 524 F.3d at 931; 50 C.F.R. § 402.02. “Recovery means more than just improved 12 status; it means improvements to the point where the species may be delisted.” Ctr. for 13 Biological Diversity v. Provencio, 2012 WL 966031, at *12 (D. Ariz. 2012); see Gifford 14 Pinchot, 378 F.3d at 1070. Moreover, USFS is not permitted to base its compliance with 15 the ESA “on speculation or surmise.” Bldg. Indus. Assoc. of Superior Calif. v. Norton, 247 16 F.3d 1241, 1247-48 (D.C. Cir. 2001) (citing Bennett v. Spear, 520 U.S. 154, 176 (1997)).

17 And, although generally given respect, “[d]eference to an agency’s decision has not come so far that we will uphold regulations whenever it is possible to conceive a basis for 18 administrative action.” Minn. Ctr. for Envtl. Advocacy v. U.S. Forest Serv., 914 F. Supp. 19 2d 957, 964 (D. Minn. 2012) (citing Bowen v. Am. Hosp. Ass’n, 476 U.S. 610, 626, 20 (1986) (plurality) (quotation marks omitted)). 21 1. Range-Wide Monitoring Essential to Delisting the MSO 22 Defendants concede that “the main purpose [of range-wide population monitoring] 23 is for FWS to conduct a future delisting analysis.” (Doc. 58 at 6.) Even FWS admits in the 24 1995 RP that delistment “depends on providing clearly specified evidence that the 25

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population is stable or increasing” and to do so there must be range-wide population 1 monitoring. USFS 130, USFS 133, USFS 140; see also USFS 109 (“[R]ecommendations 2 are not meant to stand alone without [population and habitat] monitoring.”); USFS 60 3 (same). The 2012 BiOps reflect this sentiment. See e.g., USFS 7816. Likewise, in the 2012 4 Revised RP FWS confirmed that the proposed monitoring methods must be strictly 5 followed for delisting. USFS 9540 SUP (“Without careful and rigorous application of the

6 proposed population monitoring, there would be no objective basis for delisting the owl.”).

7 This failure to monitor population not only stifles delisting, but fundamentally hampers the ability to assess recovery. Both the FWS Regional Director and the MSO 8 Recovery Team acknowledged that population monitoring, as illustrated in the 1996 RP, 9 was integral to obtaining information about the effects of any agency action on the MSO. 10 USFS 1008, 1011, 8467. So, by FWS’ own admission, delisting and therefore recovery is 11 wholly dependent upon accurate range-wide population data, and no reliable data exists. 12 While FWS argues that the Forest Plan measures taken to protect habitat sufficiently 13 addressed recovery, habitat monitoring is a sufficient way to assess MSO population and 14 is not an adequate measure of recovery. FWS has distinguished management measures that 15 measure habitat from those that monitor population:

16 [M]onitoring assesses the efficacy of management actions. Thus, it is critically important to monitor owl populations and habitat to determine 17 whether both are stable or improving. Monitoring population trends provides 18 a real-time assessment of the owl’s status, whereas habitat monitoring allows us to predict if there will be adequate habitat to support a viable owl 19 population in the future.

20 USFS 9542 SUP (emphasis added). Here, the FWS makes clear that two objectives must

21 be met prior to delisting: an improvement in habitat conditions, and a quantifiable increase in MSO population. USFS 9540 SUP. Protecting habitat is only one part of this equation. 22 Stand-alone Forest Plan measures protecting habitat do not reasonably address recovery 23 because even if all national forest land was preserved for the MSO, it will never provide 24 enough information about population trends to allow for delisting nor an accurate 25

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assessment of whether the population range-wide is recovering. Therefore, it cannot be a 1 basis for a no jeopardy determination. 2 Defendants next assert that the BiOps requirement of pre- and post-treatment 3 monitoring provides for recovery. (Doc. 52-1 at 10.) However, they also admit that any 4 monitoring for recovery would need to be done over a period of around 15 years “to 5 generate any meaningful data on population trends.” Id. at 18. A monitoring period of one 6 year before and two to three years after treatment is insufficient to provide population trend 7 data for delisting. Again, this does not provide adequate information to guide a jeopardy 8 analysis about recovery.

9 USFS next claims it does not bear the responsibility for finding a solution to

10 monitoring. USFS asserts that it need only collaborate about ideas to perform population monitoring range-wide. (Doc. 58 at 7.) USFS contends that it has fulfilled this obligation 11 by participating in pilot projects and consistently collaborating about possible methods of 12 population monitoring. Id. 13 This argument provides no accountability. In twenty-three years, this method has 14 failed to bring the MSO closer to being delisted. In allowing the effort to be “collaborative” 15 there is no one entity that is committing an ESA violation. The failure to monitor MSO 16 population gets a pass, and neither USFS nor FWS are responsible for specific measures to 17 quantify the MSO population or ensure that current Forest Plans are making strides towards

18 delisting the MSO. The Court agrees with Plaintiff that this shirking of responsibility is

19 impermissible. See, e.g., Ctr. for Biological Diversity v. Rumsfeld, 198 F. Supp. 2d 1139, 1153-54 (D. Ariz. 2002) (concluding that, by basing its no-jeopardy ruling on future 20 development of a long-term plan, the agency “admi[tted] that what is currently on the table 21 . . . is inadequate to support the FWS’s “no jeopardy” decision”). 22 Also, claims that the range-wide monitoring is not feasible because of budgetary 23 concerns do not relieve Defendants from finding a solution. The 2012 BiOps illustrate that 24 population monitoring, as described in the 1996 RP, was logistically and financially 25

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impossible. USFS 6144, 6146. Defendants have had over 20 years to find a workable way 1 to monitor MSO occupancy to measure progress towards delisting. Budget complications 2 are no excuse. Nat. Wildlife Fed’n, 524 F.3d at 929 (explaining that compliance with the 3 ESA’s no jeopardy requirements are mandatory “regardless of the expense or burden the 4 application might impose”); Ctr. for Biological Diversity v. Norton, 304 F. Supp. 2d 1174, 5 1179-80 (D. Ariz. 2003).

6 Defendants also assert that the proposed alternative monitoring method in the 2012

7 Revised RP adequately resolves the range-wide population monitoring dilemma. (Doc. 52- 1 at 18.) They claim that this new monitoring was to be put through a pilot run in 2013 8 range-wide, and was to be implemented between 2014 and 2016. Id. at 18. 9 The 2012 Draft and Revised RPs proposed “a surrogate for evaluating trends in 10 actual owl numbers, owl occupancy will be monitored at a sample of fixed sites randomly 11 selected throughout the U.S. range of the [MSO].” USFS 9542 SUP; FWS R 451. The 12 2012 Revised RP is a prospective document, issued after the 2012 BiOps. Although a draft 13 was referred to in the 2012 BiOp, it cannot be relied upon for the no-jeopardy finding. See 14 Ariz. Cattle Growers’ Ass’n v. U.S. Fish & Wildlife, Bureau of Land Mgmt., 273 F.3d 1229, 15 1245 (9th Cir. 2001) (explaining that reliance upon records not in existence at the time of

16 the determination “would allow the consulting agency to produce far reaching and unsupported [BiOps] knowing that it could search for evidentiary support if circumstances 17 change or new facts are discovered”). The Revised RP raises a surrogate monitoring 18 program for surveying random areas, but it is unclear whether this was intended to be 19 implemented at the time of the 2012 BiOps, whether USFS is responsible for its 20 implementation, or whether the surrogate can result in the delisting of the MSO. 21 Moreover, referencing a Draft Recovery Plan to show compliance with the ESA is 22 not reasonable, nor does it incorporate those measures into the BiOp. Future measures that 23 are considered for the jeopardy analysis “have to be identified and included in the Final 24 [BiOp], either as RPAs or incorporated into the [action agency’s] proposed action, to

25 support a ‘no jeopardy’ decision. Without these measures, there is no factual basis and no

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rational basis for the opinion.” Ctr. for Biological Diversity v. Rumsfeld, 198 F. Supp. 2d 1 1139, 1154 (D. Ariz. 2002). 2 Defendants point to no evidence that these protective measures have led the MSO 3 toward recovery. The PAC increase, as the 2012 BiOps demonstrate, cannot lead to the 4 inference of an increase in abundance. FWS 7806. In addition, while taking protective 5 measures to secure habitat is promising, as FWS has stated, it takes both habitat and 6 population increase to lead to delisting. See, e.g., Nat’l Wildlife Fed’n v. Nat’l Marine

7 Fisheries Serv., 839 F. Supp. 2d 1117, 1125 n.3 (D. Or. 2011) (questioning whether the court should give deference to jeopardy opinion based on habitat improvement without 8 “scientific support for specific survival predictions”). Drawing the conclusion that simple 9 habitat protection and increased PACs from new survey areas will lead to recovery is not 10 reasonable because neither method is a supported means for assessing recovery for 11 delisting. 12 Finally, FWS argues that the range-wide monitoring is for delisting—not for the 13 jeopardy analysis. However, the two are interconnected because jeopardy must consider 14 recovery, recovery must be geared towards eventual delisting, and delisting is dependent 15 upon range-wide monitoring. FWS concluded the Forest Plan did not jeopardize the MSO

16 because it was protective to MSO habitat and because there were increased PACs. But, as noted above, these are not sufficient indicators of recovery. The BiOps simply do not 17 provide a route to recovery or a way to accurately assess it. The no-jeopardy determination 18 is unsupported, arbitrary, and capricious because the finding failed to account for recovery 19 of the MSO. 20 E. FWS’ Decision to Issue Eleven Forest-Specific BiOps 21 Plaintiff claims that management across national forests is crucial, and FWS’ 22 decision to release eleven separate BiOps was inexplicable and therefore arbitrary and 23 capricious. (Doc. 50 at 23-24.) Plaintiff asserts that at minimum, Defendants needed to 24 provide a reasoned analysis supporting the policy change, but all they gave were 25 unsupported, post-hoc rationalizations. (Id. at 24; Doc. 62-1 at 20.)

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FWS responds that there were valid reasons for shifting from one BiOp for Region 1 3 to eleven individual BiOps. (Doc. 58 at 12.) The change: (1) eased the workload on staff; 2 (2) permitted a better accounting of incidental take occurring at specific projects; and (3) 3 allowed more localized and individualized coverage under the ESA. Id. FWS adds that 4 even if these reasons are insufficient, the change was not in policy, but rather a change in 5 process; as such, the move did not require a reasoned explanation. Id. at 13 (citing Cloud

6 Found. v. Kempthorne, No. CV–06–111–BLG–RFC, 2008 WL 2794741, at *2 (D. Mont. Jul. 16, 2008).) 7 “A settled course of behavior embodies the agency’s informed judgment that, by 8 pursuing that course, it will carry out the policies committed to it by Congress.” Motor 9 Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 41-42 10 (1983) (internal citation and quotation marks omitted). As the Ninth Circuit recently stated, 11 “[a]gencies are free to change their existing policies as long as they provide a reasoned 12 explanation for the change. . . . However, an agency may not depart from a prior policy sub 13 silentio.” Altera Corp. & Subsidiaries v. Comm’r, 926 F.3d 1061, 1100 (9th Cir. 2019). 14 Furthermore,

15 [A] policy change complies with the APA if the agency (1) displays an “awareness that it is changing position,” (2) shows that “the new policy is 16 permissible under the statute,” (3) “believes” the new policy is better, and (4) 17 provides “good reasons” for the new policy, which, if the “new policy rests upon factual findings that contradict those which underlay its prior policy,” 18 must include “a reasoned explanation . . . for disregarding facts and circumstances that underlay or were engendered by the prior policy.” 19 Organized Vill. of Kake v. U.S. Dep’t of Agric., 795 F.3d 956, 966 (9th Cir. 2015) (en banc) 20 (quoting FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515-16 (2009)). 21 FWS met this four-pronged test. First, the parties agree that a unified assessment of 22 the effects of agency actions from all national forests on the MSO population is crucial to 23 recovery. (Doc. 51 at 18; Doc. 52-1 at 22.) But Plaintiff argues that the eleven BiOps lose 24 sight of the overarching effects of agency action throughout all national forests. Defendants

25 retort, “[t]he analysis of each Forest Plan has not and will not occur in a vacuum; the

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impacts of implementation of all the Forest Plans in the region will continue to be 1 considered in the environmental baseline of the jeopardy analysis for the owl as well as the 2 destruction or adverse modification analysis for its designated critical habitat.” (Doc. 52-1 3 at 22-23.) 4 This overarching approach is present in the 2012 BiOps. The eleven BiOps explain 5 how the region-wide considerations contained in the 1996 S&Gs and Amended Forest Plan 6 extend to an individual BiOp. To do so, national-forest action is guided by the “long-range

7 management strategies” contained in the 1996 Amended Forest Plan for all national forests in Region 3, but the local BiOps provide “site-specific decisions” about how these regional 8 strategies will be carried out. USFS 5584; USFS 5584 (“[A]ll site-specific activities must 9 conform to the programmatic framework set up in the Forest Plans (S&Gs) and they must 10 meet . . . ESA requirements.”); USFS 5587 (“The S&Gs in the [Forest Plans] will be 11 followed when selecting, planning, and executing site-specific management actions” or 12 else the action “must be modified or the Forest Plan must be amended and subject to

13 another § 7(a)(2) consult.”).

14 These individual BiOps are not as isolated as Plaintiff claims, and the analysis for the BiOp has not changed from previous iterations: recommendations are still drawn from 15 the Forest Plans. Because the BiOps incorporate the overarching concerns of the former 16 singular BiOp, the factual findings do not contradict the previous unified version. These 17 BiOps were simply separated in a different manner, but address the same issues as in the 18 previous BiOps. If anything, the change allowed for more detailed analysis of the effect of 19 each national forest’s Forest Plans, which is the underlying purpose of the BiOps.

20 Second, Defendants announced the shift to eleven Biological Assessments (and as

21 a result, eleven BiOps) in their December 2010 Consultation Agreement, therefore demonstrating an awareness of the changing position. USFS 4451. 22 Third, Defendants believed the new policy improved on the previous iteration. The 23 meeting minutes with the FWS Regional Office issued prior to the 2012 BiOps show that 24 FWS and USFS had participated in discussions about the advantages of separating the 25

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BiOps by national forest. USFS 4316. The minutes state Defendants “agreed that the 1 [BiOps] would be by forest and could come one by one, instead of all at once . . . . This 2 approach will make it easier at both the Regional and field office levels for both agencies.” 3 USFS 4316. 4 Also, Defendants assert that focusing on individual national forests would allow for 5 easier assessment by dividing the BiOps into smaller, staggered, manageable subdivisions, 6 rather than one overarching, all-encompassing BiOp. (Doc. 58 at 12.) This assertion is

7 supported by the record. See USFS 4316. The spacing permits more time for individualized national forests BiOps, and delegates efforts for each national forest at staggered intervals. 8 Finally, both parties argue about whether the Northern Spotted Owl or the Canada 9 lynx have separate or unified BiOps, but Plaintiff never challenges FWS’ contention that 10 the ESA does not demand that FWS produce one BiOp for Region 3. (Doc. 52-1 at 22.) 11 The matter of whether the BiOps for either of these species have similar delineations is 12 inconsequential when there is no evidence that individualized BiOps are impermissible. 13 The Court finds that Defendants have provided valid reasons for the change to 14 eleven BiOps. Therefore, the Court cannot grant Plaintiff’s request to direct Defendants to 15 issue a single BiOp for Region 3. As such, the Court need not address Defendants’ 16 procedural-versus-policy argument.

17 F. Cumulative Effects of Climate Change on the MSO

18 Plaintiff asserts that the coverage of the effects of climate change in the 2012 BiOps

19 was too general and, given the potentially devastating threat to the MSO, should have been evaluated more in depth. (Doc. 50 at 24.) Furthermore, the BiOps failed to analyze the 20 effects of climate change as it relates specifically to the MSO population. Id. If done 21 properly, Defendants would have recommended conserving land that is not currently 22 reserved for the MSO in climates both warmer and cooler than that currently utilized by 23 MSOs. Id. Defendants respond that the 2012 BiOps included information about how 24 climate change will affect the MSO. (Doc. 58 at 15.) To help the MSO population survive 25

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in the face of these changes, the 2012 BiOps recommended cultivating the multilayered 1 canopies that MSOs prefer. Id. 2 FWS noted in the 2011 Biological Assessment that, in the Southwest, climate 3 change will manifest in increased temperatures and aridity, intensified flooding, and 4 delayed monsoons. USFS 4717. Plainly, FWS recognized, these differences may result in 5 more wildfires. USFS 4717. But, FWS noted, “[m]ost global climate models are not yet 6 precise enough to apply to land management at the . . . [national forest] scale. This limits

7 the [national forest] specific analysis of potential effects of climate change.” USFS 4719; see also USFS 9221 SUP (stating that because the science on climate change is in the 8 developmental stage “assessments of the effects of climate change on the [MSO] at this 9 time necessarily are speculative, [and] based on circumstantial information”). Furthermore, 10 these changes were not anticipated to be measurable within the time the 2011 assessment 11 was to be in effect. USFS 4740; see also USFS 7579. 12 Nevertheless, FWS stated, “[c]limate variability combined with unhealthy forest 13 conditions may [] synergistically result in increased negative effects to habitat from fire,” 14 FWS 7806; USFS 6136, insects, and disease. USFS 4740; USFS 7579. To decrease the 15 threat of landscape-altering fires, FWS concluded that continued implementation of fuels

16 reduction and forest restoration pursuant to the 1995 RP would suffice, and that without these measures “existing forest conditions, climate change, and extended droughts will 17 continue to impact forest sustainability.” FWS 6796. 18 Plaintiff would like a different approach to climate change but fails to show that 19 Defendants did not consider the effects on the MSO. The BiOps include information that 20 increased fires due to warmer, drier temperatures could ruin habitat and increase disease. 21 FWS recommended utilizing fuels management and forest restoration measures to protect 22 multilayered, dense canopies amenable to the MSO population. This Court must be 23 deferential to Defendants’ predictions about the possible effects of climate change. See FG 24 v. USFS, 329 F.3d 1089, 1099 (9th Cir. 2003).

25 FWS acknowledges that due to the shorter timeline (approximately 10 years), the

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effects need not be given much detail. FWS 194. But, just because Defendants addressed 1 the impact on the MSO population generally does not mean they “failed to consider an 2 important aspect of the problem,” and Plaintiff fails to articulate what FWS failed to 3 consider. See Nat’l Ass’n of Home Builders, 551 U.S. at 658. Where a plaintiff fails to point 4 to data omitted from consideration, the claim fails. Kern Cnty. Farm Bureau, 450 F.3d at 5 1081. The climate analysis was neither arbitrary nor capricious.

6 G. Cumulative Effects of the Tribal Timber Management Programs

7 Plaintiff next claims that the 2012 BiOps failed to detail the potential effects of tribal

8 timber management programs because this section is lifted directly from the 2005 BiOp and was so inconsequential to FWS that they inadvertently omitted it from the draft 2012 9 BiOps. (Doc. 50 at 25; FWS 756). FWS asserts that its handling of tribal cumulative effects 10 was sufficient. (Doc. 58 at 15.) First, FWS states it was limited to information provided by 11 the tribes. Id. at 16. Second, FWS notes, there was individualized analysis of cumulative 12 effects in several national forest BiOps, including the Lincoln, Santa Fe, and Tonto national 13 forests. Id. at 16. 14 Agencies must assess the cumulative effects of their actions on a listed species 15 during formal consultation and within a BiOp. 50 C.F.R. § 402.14(g)(3)-(4). “Cumulative 16 effects are those effects of future State or private activities, not involving Federal activities,

17 that are reasonably certain to occur within the action area of the Federal action subject to consultation.” 50 C.F.R. § 402.02(d). 18 The 2012 BiOps concluded that “Tribes are sovereign governments with 19 management authority over wildlife and other Tribal land resources.” FWS 7595. In the 20 Revised RP, FWS also indicates that “[m]ost tribes consider their wildlife information to 21 be proprietary” and therefore FWS necessarily limited the cumulative effects discussion to 22 the information disclosed by the tribes. USFS 9921 SUP; USFS 9595. 23 Plaintiff is correct that the cumulative analysis was missing entirely from the draft 24 BiOps. FWS 756. And Plaintiff’s description of that analysis as “boilerplate” may be 25

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accurate in the sense that the language reflected earlier language from the 2005 BiOps. 1 However, Plaintiff’s argument fails because it never questions the validity of the 2005 2 analysis. Nor does Plaintiff allege that FWS was provided further information from tribal 3 populations that would mandate a revision of its analysis, or challenge FWS’ contention 4 that it could only use information provided by the tribes. 5 In the 2012 BiOps, FWS looked at the cumulative effects of tribal actions according 6 to the tribes’ disclosed timber management programs. USFS 9921 SUP1. For instance, the

7 Tonto Forest BiOp found that the San Carlos Apache Tribe’s MSO Conservation Plan took measures to protect the MSO population including: deferring timber harvesting around 8 MSO habitats, practicing uneven-aged silviculture, “maintaining sufficient suitable 9 habitat,” and reducing the risk of wildfire through fire-management programs. FWS 8988. 10 FWS also found that the White Mountain Apache forest management plan was protective 11 of the MSO because its timber management took the back seat to MSO protection in areas 12 with four or more MSO populations, it prevented timber harvest around MSO PACs, and 13 it seasonally limited activities that may disturb the MSO. FWS 8988. FWS found these 14 programs “wholly beneficial to the [MSO]” in 2005. USFS 2336: see also FWS 8737

15 (Mescalero Apache Tribe’s forest plan paralleled RP and therefore protective of MSO).

16 Plaintiff does not indicate what “important aspects of the problem” were omitted from the cumulative effects of tribal management. (See Doc. 50 at 26.) There is no claim 17 that additional information subsequent to the 2005 BiOps was made available by the tribes 18 to the FWS. Furthermore, in 2005, FWS provided detailed analysis of the cumulative 19 effects of tribal timber management plans by describing known tribal management actions 20 and comparing them to FWS timber management recommendations for the protection of 21 the MSO. Many of the tribal programs were found to be in line with FWS’ timber 22 management recommendations and therefore not cumulatively detrimental. FWS is not

23 required to reanalyze the cumulative effects when there was no additional information to

24 analyze and the information known was consistent with MSO recovery measures. FWS utilized the best information available (the data provided by the tribes) to determine the 25

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cumulative effects of tribal timber management. The analysis is as relevant in 2012 as it 1 was in 2005. Therefore, it was not arbitrary or capricious. 2 H. Relationship Between the MSO and Wildfire 3 In the 2012 BiOps, there was concern over the effects of landscape-changing 4 wildfire on the MSO population. FWS 7807, 8453. But Plaintiff contends that FWS 5 inconsistently found that severe wildfire “was the greatest threat to the MSO within the 6 action area,” while contemporaneously claiming that FWS was unable to gage how 7 wildfires effected MSO population. Id. Plaintiff asserts FWS’ conclusion failed to use the

8 best available evidence and lacked support, making it arbitrary and capricious. (Id. at 26; Doc. 62-1 at 23.) 9 To Plaintiff, the best available evidence came from sources indicating that MSOs 10 can thrive post-wildfire. (Doc. 51 at 33, ¶¶ 106-09.) Plaintiff cites to a critique which asserts 11 that MSOs “tolerate some degree of moderate to high-severity fire” and may be amenable 12 to foraging in burned areas. (Id. (citing USFS 9363 SUP1).) Plaintiff also cites to a 2011 13 survey of MSOs in the Chiracahua Mountains, which contains anecdotal evidence that 14 MSOs can survive in areas subjected to high-intensity fire and, in certain instances, exhibit 15 increased birth rates. (Id. (citing USFS 9299-9300).) Likewise, a survey including MSOs 16 in the Pinaleno Mountains noted an increase in births seven years after a high-severity

17 wildfire.9 (Id. (citing USFS 9323 SUP1).) Finally, Plaintiff points to evidence indicating that MSOs were attracted to burned areas due to the increased availability of rodents. USFS 18 9158 SUP. 19 In refute, FWS argues that Plaintiff relies on surveys where the wildfires burn in a 20 haphazard burn pattern, which leaves survey areas with some old-growth, multilayered 21 canopies for MSOs to live. (Doc. 58 at 17.) However, if there were no habitat available, 22

23 9 The Court recognizes that the Chiracahua and Pinaleno Mountains are within the Coronado national forest, and this BiOp has been found moot. The Court refers to this 24 survey to acknowledge the information available of increased birth rates in forests that have been modified by severe fire and does not draw any conclusions about the Coronado 25 national forest BiOps. 26 - 31 - 27 Case 4:13-cv-00151-RCC Document 89 Filed 09/12/19 Page 32 of 39

due to a high-severity, landscape-altering wildland fire, then there would be nowhere for 1 MSOs to roost, reproduce, or forage. Id. With no habitat to occupy, the MSO cannot 2 survive. Id. Because FWS’ concern was from landscape-annihilating wildfires, and 3 Plaintiff sites to instances where there was merely mosaic-pattern burning of forest land, 4 Defendants contend the cited data is not in conflict with the findings in the 2012 BiOps. 5 Id. In addition, Defendants claim the longest data collected was limited to seven years post-

6 fire and this cannot adequately assess the long-term effects. Id. Therefore, FWS reasonably concluded that given the lack of long-term, reliable data, the best way to protect MSOs was 7 to protect their habitat. Id. at 16. 8 The 2012 BiOps observed that MSOs depend on old-growth forests with uneven 9 canopies. USFS 5929. It also stated that the primary threat to MSO PACs was catastrophic 10 wildfire. USFS 5933, 6137. FWS noted that “[w]ildland fire has resulted in the greatest 11 loss of PACs and [critical habitats] relative to any other actions” FWS 7907; see USFS 12 9751 SUP, and that “[s]outhwestern forests have experienced larger and more severe 13 wildland fires from 1995 to the present than prior to 1995,” USFS 7806; see USF 9749 14 SUP (stating forests are now more frequently exposed to increased intensity, stand-

15 replacing wildfires and the loss of habitat “can be detrimental to [MSOs], even if they are able to persist in burned areas over the short term.”). 16 However, FWS also admitted that there was limited information about the extent to 17 which wildfires effected the MSO population, see, e.g., FWS 7859, or the long-term effects 18 of wildland fire on the MSO, see e.g., USFS 9586, 9759, 9817 SUP. In the 2012 BiOps, it 19 stated that there was some indication that even after wildfires, MSOs have “return[ed] to 20 their nesting and roosting areas . . . and have bred successfully.” USFS 6146. FWS also 21 conceded in the 2012 BiOps that fuels-reduction measures may cause temporary, short- 22 term disturbances to MSOs, but the short-term harassment was outweighed by the

23 importance of avoiding wildfires that cause long-term loss of old, multi-canopied forest in

24 which MSOs prefer to live. USFS 5939, 6137.

25 Defendants’ reasoning is rational and supported by adequate data. The best available

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evidence is that MSOs have lost the greatest amount of habitat and PACs from wildland 1 fires. It is logical to conclude that the long-term effect on MSOs from loss of habitat is 2 negative, and that reducing the likelihood of landscape-annihilating wildfire would protect 3 current and future MSO PACs. Further, evidence exists supporting FWS’ contention that 4 severe, stand-replacing wildfires would negatively impact MSO population. One survey 5 indicated that MSOs “continued to occupy burned areas . . . except in the territory that

6 experienced the highest burn severity.” USFS 9756 SUP; USFS 9758 SUP. Others found that in these high-severity fire areas there were fewer coupled MSOs. See USFS 9218, 7 9756-58 SUP. And, even in instances noting the beneficial effect of wildfires, it is conceded 8 that data is sparse, methods were varied, or the connection between cause and effect was 9 hypothetical. See, e.g., USFS 9768 SUP; USFS 9755 SUP; USFS 9759-60 SUP. Moreover, 10 nearly all of the surveys Plaintiff cites to include areas in which only certain percentages 11 of the land were burned, not complete destruction. The conclusion that holocaustic wildfire 12 would negatively impact MSOs does not contradict evidence of MSOs’ survival after 13 lower-grade wildfires.

14 Plaintiff argues that a seven-year study on births should be sufficient to demonstrate

15 that severe wildfires are beneficial in the long-term. But FWS explains that MSOs live for extended periods, and any population trend studies must be over ten years to provide any 16 reliable connections between an action and the effect on MSOs. USFS 9585 SUP; USFS 17 7324. There is no data available about the effects of catastrophic wildfires over a period of 18 ten years. USFS 9751. FWS’ explanation for why it would not rely on a survey of shorter 19 length is not implausible and does not “run[] counter to the evidence before the agency.” 20 Nat’l Ass’n of Home Builders, 551 U.S. at 658. The Court understands this lack of long- 21 term data is frustrating, especially because long-term, range-wide monitoring needs to

22 occur to delist the MSO. However, this does not mean that better evidence was available,

23 or that FWS’ conclusions were arbitrary or capricious.

24 FWS did not fail to consider evidence of MSOs success post-fire; rather FWS did not give it the weight that Plaintiff would like. There is simply not enough data to ensure 25

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landscape-altering fires positively effect MSOs in the long run. There appears to be some 1 indication that MSOs can survive and reproduce after mosaic-pattern, severe-intensity 2 wildfire. But to interpret the data in the manner Plaintiff suggests would require this Court 3 to ignore the evidence in its entirety, blindly focusing only on the statements that support 4 Plaintiff’s conclusions. In addition, the Court would have to ignore the surveys’ admitted 5 limitations: limited data, differing survey methods, and questionable causal connections.

6 I. FWS’ Incidental Take Statements

7 Plaintiff confusingly asserts that the ITS in the 2012 BiOps are arbitrary and

8 capricious because they “allow for open-ended and limitless take so long as a certain amount is not exceeded each year.” (Doc. 50 at 29, 30 (emphasis added).) In the 2012 9 BiOps, take is determined by PACs instead of an individual MSO count, and Plaintiff 10 claims the number of PACs can be altered by USFS management actions. Id. at 30. Plaintiff 11 also believes that the ITSs fail to account for take outside of PACs. Id. at 29. Defendants’ 12 explanation of the one-year time limit for incidental take is equally perplexing. They appear 13 to assert that any agency action would exceed permissible take if it were measured by a 14 longer time frame, but somehow the same action would not violate incidental take in one 15 year. (Doc. 58 at 18-19.) They state that the take was limited to one year “because

16 otherwise the agencies would be reinitiating Section 7 consultation after the first landscape- level project due to an exceedance of the incidental take limit.” Id. at 19. Nevertheless, 17 Defendants counter, FWS sets take limits that are quantifiable and therefore not arbitrary. 18 Id. at 18. Furthermore, FWS considered the MSOs outside PACs because take was limited 19 by national forest, not just PACs, and the BiOps require surveys to discover MSOs prior to 20 implementation of projects outside PACs. Id. 21 “Where possible, [an ITS] should be specified in terms of a numerical limitation on 22 the Federal agency.” Or. Nat. Res. Council v. Allen, 476 F.3d 1031, 1037-38 (9th Cir. 23 2007). An ITS that “contains no numerical cap on take and fails to explain why not” 24 violates the ESA. CBD v. USBLM, 698 F.3d 1101, 1126-27 (9th Cir. 2012). In general,

25 quantified take should be the number of individuals in the species lost, not the loss of

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habitat. Allen, 476 F.3d at 1037-38; see also Gifford Pinchot, 378 F.3d at 1066. A surrogate 1 number is valid only if “no number may be practically obtained” and there is a verifiable 2 level at which, if surpassed, would require reinitiating consultation. Allen, 476 F.3d at 3 1037-38. 4 The Court finds that the ITSs’ use of a surrogate was reasonable. The BiOps 5 provided a valid reason for why a measurable number of MSOs could not be obtained. For 6 instance, the Santa Fe Forest ITS stated:

7 [I]t is difficult to quantify the number of individual owls taken because (1) dead or impaired individuals are difficult to find and losses may be masked 8 by seasonal fluctuations in environmental conditions; (2) the status of the 9 species could change over time through immigration, emigration, and loss or creation of habitat; and (3) the species is secretive and we rarely have 10 information regarding the number of owls occupying a PAC and/or their reproductive status. 11

12 USFS 6147; USFS 6797. Plaintiff also acknowledges that MSOs often leave PACs (Doc. 50 at 29), which would make individual monitoring more difficult. FWS’ solution was to 13 track incidental take by measuring PACs rather than individuals. USFS 6147; USFS 6797. 14 FWS explains in the BiOps: 15 [Measuring PAC levels] fits well with our current Section 7 consultation 16 policy which provides for incidental take if an activity compromises the integrity of an occupied PAC to the extent that we are reasonably certain that 17 incidental take occurred. . . . Actions outside PACs will generally not result 18 in incidental take because we are not reasonably certain the owls are nesting and roosting in areas outside of PACs. We may modify this determination in 19 cases when areas that may support owls have not been adequately surveyed and we are reasonably certain owls may be present. 20

21 USFS 6147.

22 Not only do the 2012 BiOps limit take to a certain number of PACs, they also limit the amount of time harassment can occur. See, e.g., Carson Forest BiOp, FWS 7817 (of the 23 2 designated PACs, incidental take of 1 PAC permissible per year from harassment lasting 24 no longer than 3 breeding seasons); Santa Fe Forest BiOp, USFS 6148 (of the 48 designated 25

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PACs, incidental take of 2 PACs permissible per year from harassment for no more than 3 1 breeding seasons); Tonto Forest BiOp, USFS 6798 (of the 72 designated PACs, incidental 2 take of 4 PACs permissible per year from harassment lasting no more than 3 breeding 3 seasons, and from long-term disturbance of 2 PACs per year); Gila Forest BiOp, USFS 4 6978 (of the 286 designated PACs, incidental take of 14 PACs permissible per year from 5 harassment lasting no longer than 3 breeding seasons, and 2 PACs from “long term or

6 chronic disturbance, or habitat degradation or loss over the life of the [BiOp].”)

7 Furthermore, FWS considered possible MSOs outside of designated areas in the BiOps by requiring surveys prior to any agency action. USFS 466; USFS 6148. In the event 8 MSOs were detected during the surveys, the BiOps provided for the addition of new PACs. 9 USFS 6150; FWS 7919-22. FWS even allowed for modification in instances where MSO 10 are likely present but not yet known and protected. USFS 6147. Moreover, FWS also 11 suggested protective fuels reduction and forest restoration measures for areas outside of 12 PACs and possible MSO habitat to reduce the risk of forest fires that could destroy MSO 13 habitat. USFS 6150. 14 The Court finds that the use of a surrogate was appropriate in this instance because 15 an accurate measure of MSOs cannot be “practically obtained.” Allen, 476 F.3d at 1038.

16 Nor can the extent of incidental take on individual MSOs be ascertained with “reasonable certainty.” See 80 Fed. Reg. 26, 832 (May 11, 2015). The surrogate provided limited take 17 that, if surpassed, would require reinitiation of Section 7 consultation. In addition, FWS 18 accounted for take outside of PACs. The ITS was neither arbitrary nor capricious. 19 J. USFS’ Reliance on the 2012 BiOps and their Subparts 20 Finally, Plaintiff believes that USFS has violated its independent, substantive duty 21 to avoid jeopardy through arbitrary reliance upon invalid BiOps. Under Section 7 of the 22 ESA, USFS has a substantive duty to “ensure that its operations are not likely to jeopardize 23 the continued existence” of the MSO. (Doc. 50 at 30-31.) An action agency “may not rely 24 solely on a FWS [BiOp] to establish conclusively its compliance with its substantive 25 obligations.” Pyramid Lake, 898 F.2d at 1415. When reviewing an agency’s reliance on a

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BiOp, courts examine whether that reliance was arbitrary and capricious. Aluminum Co. of 1 Am. v. Adm’r, Bonneville Power Admin., 175 F.3d 1156, 1162 (9th Cir. 1999). 2 For the reasons stated within this Order, FWS’ no-jeopardy opinion is arbitrary and 3 capricious and USFS’ reliance upon the jeopardy opinion in the 2012 BiOps constitutes a 4 substantive violation of its Section 7(a)(2) duties. Because the Court finds that the 2012 5 BiOps are not compliant with the ESA, the Court must decide the proper relief. 6 Plaintiff seeks an injunction preventing “all USFS management action in Region 3 7 national forests that involve actions that are inconsistent with the adaptive management

8 approach adopted by the USFS in the 1996 S&Gs pending the FWS’s issuance of BiOps that comply with all the requirements of the ESA.” (Doc. 10 at 35.) “The traditional 9 preliminary injunction analysis does not apply to injunctions issued pursuant to the 10 ESA.” Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 422 F.3d 782, 793 (9th Cir. 11 2003). Typically, a plaintiff seeking a permanent injunction must show: 12 (1) that it has suffered an irreparable injury; (2) that remedies available at 13 law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and 14 defendant, a remedy in equity is warranted; and (4) that the public interest 15 would not be disserved by a permanent injunction.

16 Cottonwood Envt’l Law Ctr. v. U.S. Forest Serv., 789 F.3d 1075, 1088 (9th Cir. 2015) 17 (citation and quotations omitted). However, when considering an injunction under the 18 ESA, courts presume that the latter three factors are satisfied. See id. at 1090. Courts 19 nonetheless retain their equitable discretion to decide whether the plaintiff seeking

20 injunctive relief has suffered an irreparable injury. Id. Moreover, a plaintiff must demonstrate that irreparable injury “is likely in the absence of an injunction.” Nat’l Wildlife 21 Fed’n v. Nat’l Marine Fisheries Serv., 886 F.3d 803, 818 (9th Cir. 2018) (emphasis in 22 original) (citing Winter, 555 U.S. at 22). There must be “a definitive threat of future harm,” 23 not just “speculation.” Id. at 819. The also courts enjoy “broad discretion” when deciding 24 the appropriate remedy. Id. Courts in this district have found that timber harvesting 25

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“constitutes per se ‘irreversible and irretrievable’ commitment of resources” preventing 1 further agency action until the completion of consultation. Silver v. Babbitt, 924 F. Supp. 2 976, 986, 989 (D. Ariz. 1995) (citing Lane Cty. Audubon Soc. v. Jamison, 958 F.2d 290, 3 295 (9th Cir. 1992); Pacific Rivers Council v. Thomas, 30 F.3d 1050, 1057 (9th Cir. 1994)). 4 The Court finds that USFS timber management actions (including timber 5 harvesting) causes irreparable harm which cannot proceed during a Section 7 consultation

6 addressing occupation monitoring of the MSO for recovery. It has been demonstrated over the past 20 years that “the status quo will not lead to recovery of the listed species.” 7 See Nat’l Wildlife Fed’n, 422 F.3d 782, 796 (9th Cir. 2005). 8 When a court finds that irreparable harm is likely to occur and the reigning BiOps 9 are invalidated, it must tailor injunctive relief to remedy the specific harm alleged. Nat’l 10 Wildlife Fed’n v. Nat’l Marine Fisheries Serv., No. 3:01-cv-0640-SI, 2017 WL 1829588, 11 at *2 (D. Or. Apr. 3, 2017) (citing Melendres v. Arpaio, 784 F.3d 1254, 1265 (9th Cir. 12 2015)). The Court finds that halting the USFS timber management actions under the 2012 13 BiOps until the conclusion of a formal consult and the issuing of superseding BiOps is

14 appropriate. The Court will therefore grant an injunction of USFS timber management actions in Region 3 National Forests and order Defendants to reinitiate formal consultation. 15 /// 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25

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IT IS ORDERED: 1 1. Plaintiff’s Motion for Summary Judgment is GRANTED in part and DENIED 2 in part to the extent provided herein. 3 2. Defendants Cross-Motion for Summary Judgment is GRANTED in part and 4 DENIED in part to the extent provided herein. 5 3. USFS timber management actions in Region 3 national forests must cease 6 pending formal consultation.

7 4. The USFS and FWS must reinitiate a formal Section 7(a)(2) consultation and formulate superseding BiOps that conform with the terms of this Order. 8 5. The formal consultation must reassess the jeopardy analysis and the effect of 9 Forest Plans on the recovery of the MSO. 10 6. This case is DISMISSED. 11 Dated this 11th day of September, 2019. 12

17 18

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