49 F. Supp. 3d 774
D. Or.2014Background
- Plaintiffs challenge the salvage logging and related actions under the ESA and APA and seek a preliminary injunction against the federal action.
- Douglas Fire Complex burned about 48,000 acres in the southern Oregon Klamath Mountains; BLM approved the Douglas Fire Complex Recovery Project with a DR/FONSI allowing salvage logging on ~1,276 acres and hazard-tree removal.
- FWS issued a Biological Opinion finding the project likely to incidentally take spotted owls but not likely to jeopardize the species or destroy habitat; an Incidental Take Statement may apply.
- ESA Section 7 requires federal action agencies to consult if the action may affect listed species; the BiOp evaluated current status, effects, and cumulative effects to determine jeopardy or adverse modification.
- Recovery Actions RA10 and RA12 from the NSO Recovery Plan guide conservation and habitat restoration; recovery plans are guidance rather than mandatory law, and the court explains jeopardy vs. recovery distinctions.
- Court applies Winter v. NRDC four-prong test for preliminary injunctions and Denies the motion, finding no likelihood of success on the merits, lack of irreparable harm, and proper balance of equities and public interest
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FWS's jeopardy analysis was arbitrary or failed to consider relevant factors | Plaintiffs contend FWS ignored barred-owl detectability and other factors | FWS acknowledged barred-owl detectability and used best available data | Not likely to succeed; analysis not arbitrary |
| Whether FWS adequately analyzed post-fire habitat use by spotted owls | Plaintiffs claim FWS ignored evidence that owls expand core areas post-fire | FWS considered shifts and used appropriate home-range/core-use scales | Not likely to be erroneous; analysis supported by record |
| Whether the NLAA/LAA methodologies were applied inconsistently | FWS misapplied thresholds and inconsistent methodology | FWS used OECD-like site-specific metrics and reasonable modeling | Not arbitrary; methodology properly applied to sites |
| Whether Recovery Plan actions have force of law affecting the action | Recovery Plans are binding requirements | Recovery plans are guidance, not binding; jeopardy analysis stands | Recovery plans are non-binding guidance; BiOp consistent with actions |
| Whether the four Winter factors support granting a preliminary injunction | Plaintiffs contend irreparable harm and balance favor them | Hardships favor species protection and public interests and project benefits | Injunction denied; no four-factor showing from plaintiffs |
Key Cases Cited
- Winter v. NRDC, 555 U.S. 7 (U.S. 2008) (establishes four-prong test for injunctions)
- Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011) (sliding-scale approach allows serious questions rebutting likelihood of success)
- Lands Council v. McNair, 629 F.3d 1070 (9th Cir. 2010) (agency must show rational basis; arbitrary if implausible or inconsistent with record)
- Oceana, Inc. v. Evans, 384 F.Supp.2d 203 (D.D.C. 2005) (agency model used is arbitrary only if bears no rational relation to reality)
- Burlington Northern & Santa Fe Railway Co. v. NWF, 422 F.3d 782 (9th Cir. 2005) (balancing public and environmental interests in ESA disputes)