806 F.3d 1234
9th Cir.2015Background
- The Douglas Complex Fire burned ~48,000 acres in Oregon; the BLM approved a Douglas Complex Fire Recovery Project to salvage ~1,276–1,612 acres of burned trees (including ~1,600 acres of salvage logging across federal and non-federal land).
- The BLM concluded the Project “may affect and is likely to adversely affect” northern spotted owls and consulted the U.S. Fish and Wildlife Service, which issued a biological opinion predicting incidental take (harm) to owls but concluding the Project was not likely to jeopardize the species or adversely modify critical habitat.
- Cascadia Wildlands sought a preliminary injunction to enjoin the Project and challenged the biological opinion, arguing the Service failed to use the best available science on (1) barred owl effects on detectability, (2) post-fire home-range shifts and habitat use, (3) site-specific effects methodology, and (4) consistency with the Service’s Recovery Plan.
- The district court denied the preliminary injunction, finding Cascadia had not shown a likelihood of success on the merits and that the Service had adequately considered the scientific evidence and applied reasonable methods.
- On appeal, the Ninth Circuit reviewed the denial deferentially, emphasizing agency expertise on scientific matters, and affirmed the district court, holding the Service’s biological opinion was supported by the best available science and not arbitrary or capricious.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Barred owls reduce detectability of spotted owls, causing undercounting of occupied sites | Service ignored or failed to account for barred-owl–induced nonresponse and thus underestimated occupancy | Service used long-term, consistent survey data that acknowledged barred-owl effects and incorporated those findings into its analysis | Court: Service considered and relied on best available survey data; conclusion not arbitrary; defendant prevails |
| Wildfire effects on home ranges/core areas — owls may expand or shift ranges post-fire | Post-fire expansion/shifting requires larger buffers; Service underestimated affected habitat | Service analyzed larger home-range/core-use radii, reviewed literature, and used professional judgment plus site-specific factors | Court: Service adequately considered post-fire shifts and used reasonable methodology; defendant prevails |
| ESA procedural/analytic requirements (action area definition, inconsistent methods, site-specific assessments) | Service misapplied methods, miscalculated nesting/roosting/foraging coverage, and inconsistently determined "take" | Service defined action area to include potentially affected home ranges, used guideline percentages plus multiple site-specific factors, and explained occupancy determinations | Court: Service’s approach was reasonable, site-specific factors supported its conclusions; defendant prevails |
| Consistency with the Northern Spotted Owl Recovery Plan (Recovery Actions 10 & 12) | Recovery Plan is best science; Service deviated without adequate justification, undermining recovery | Recovery plans are nonbinding; jeopardy analysis is distinct from recovery implementation; biological opinion was consistent with recovery actions where relevant | Court: Recovery plan recommendations are not binding; biological opinion reasonably implemented recovery actions and did not err |
Key Cases Cited
- Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir.) (standard of review for preliminary injunctions)
- Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 422 F.3d 782 (9th Cir.) (deferential review of agency biology in ESA §7 cases)
- Conservation Cong. v. Finley, 774 F.3d 611 (9th Cir.) (agency discretion in selecting best scientific data)
- United States v. Lewis, 611 F.3d 1172 (9th Cir.) (disagreement with agency conclusions does not show failure to use scientific data)
- Ariz. Cattle Growers’ Ass’n v. U.S. Fish & Wildlife, 273 F.3d 1229 (9th Cir.) (APA review standard for agency action)
- Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208 (9th Cir.) (agency must support conclusions with evidentiary references)
- DISH Network Corp. v. F.C.C., 653 F.3d 771 (9th Cir.) (court need not reach all injunction factors if movant fails on likelihood of success)