Friends of Animals v. Usfws
28 F.4th 19
| 9th Cir. | 2022Background
- The northern spotted owl is a threatened species; the invasive barred owl expanded westward and competes with and displaces spotted owls. FWS proposed a large-scale lethal barred-owl removal experiment to study effects on spotted-owl occupancy, reproduction, survival, and to inform recovery strategies.
- The experiment designated four study areas (including the Oregon Coast Ranges ~500,000+ acres); FWS planned to remove roughly 3,600 barred owls over about four years (data collection could run up to 10 years).
- To access private/state lands in the Oregon Coast Ranges, FWS issued Enhancement of Survival permits and entered Safe Harbor Agreements (SHAs) with three nonfederal landowners; permits authorize incidental take only on "non-baseline" (unoccupied) sites and include seasonal protections.
- FWS prepared a programmatic EIS for the experiment (2013) and issued Biological Opinions under the ESA and EAs/FONSIs under NEPA for individual permits. FWS concluded the experiment would produce an informational benefit that contributes indirectly to spotted-owl recovery and that impacts (including limited critical-habitat loss) would not jeopardize the species.
- Friends of Animals sued, alleging ESA violations (permits fail to provide a required “net conservation benefit”; improper baseline determinations; inadequate critical-habitat analysis) and NEPA violations (failure to prepare Supplemental EIS for the permits; failure to analyze connected actions together). The district court granted summary judgment to FWS; the Ninth Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a Safe Harbor permit must provide a “net conservation benefit” that excludes purely informational/research benefits | Friends: “Net conservation benefit” (per Safe Harbor Policy) requires direct increases in population or habitat recovery and does not include informational benefits | FWS: ESA defines “conservation” to include research; informational benefits that contribute directly or indirectly to recovery satisfy the regulation | Held: Informational/research benefits can constitute a “net conservation benefit”; agency’s interpretation consistent with statute and Policy |
| Whether FWS properly defined baseline conditions (resident vs. floaters; use of 3–5 years of survey data) | Friends: FWS improperly treated sites as unoccupied/abandoned and excluded floaters, understating baseline occupancy | FWS: Policy allows flexibility; baseline may be set by resident occupancy using multi-year surveys; floaters unlikely to breed without establishing territories | Held: FWS reasonably used resident survey data (3–5 years) and need not treat floaters as baseline occupancy |
| Whether Biological Opinions inadequately analyzed impacts to critical habitat subsets | Friends: Agency ignored foraging/transience/colonization subsets and failed to analyze state-land overlap | FWS: Biological Opinions analyzed foraging/transience/colonization and conservatively assumed up to 3,345 acres affected (≈0.04% of range-wide habitat) | Held: FWS adequately analyzed critical-habitat effects and permissibly focused on nesting/roosting as most important subset |
| Whether NEPA required a Supplemental EIS or a single EIS for connected actions (permits + experiment) | Friends: Permits (authorizing incidental take) materially changed the EIS analysis; specifics are significant new information; permits are interdependent with the experiment and should be analyzed together | FWS: Permits are a minor variation within the original EIS spectrum; the programmatic EIS anticipated nonfederal land inclusion; permits have independent utility and EAs properly found no significant impact | Held: No Supplemental EIS required; permits were within original EIS scope and not "connected actions" requiring one combined EIS |
Key Cases Cited
- Auer v. Robbins, 519 U.S. 452 (1997) (deference to agency interpretation of its own regulations)
- Decker v. Nw. Envtl. Def. Ctr., 568 U.S. 597 (2013) (regulations must be interpreted consistently with the statute they implement)
- San Luis & Delta-Mendota Water Auth. v. Locke, 776 F.3d 971 (9th Cir. 2014) (courts defer to agency scientific judgments under APA arbitrary-and-capricious review)
- Native Ecosystems Council v. Marten, 883 F.3d 783 (9th Cir. 2018) (standard of review for ESA/NEPA challenges)
- Ranchers Cattlemen Action Legal Fund v. U.S. Dep’t of Agric., 499 F.3d 1108 (9th Cir. 2007) (arbitrary-and-capricious review requires rational connection between facts and agency choices)
- W. Radio Servs. Co. v. Espy, 79 F.3d 896 (9th Cir. 1996) (review of agency noncompliance with agency guidance limited to pronouncements having force of law)
- Russell Country Sportsmen v. U.S. Forest Serv., 668 F.3d 1037 (9th Cir. 2011) (framework for when a Supplemental EIS is required; "minor variation" and "within the spectrum of alternatives")
- Marsh v. Or. Nat. Res. Council, 490 U.S. 360 (1989) (when agencies must prepare Supplemental EIS)
- Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989) (NEPA requires agencies to consider environmental consequences before action; cannot delay review until later agency refinement)
- Great Basin Mine Watch v. Hankins, 456 F.3d 955 (9th Cir. 2006) ("independent utility" test for connected actions under NEPA)
- Cal. ex rel. Imperial Cty. Air Pollution Control Dist. v. U.S. Dep’t of the Interior, 767 F.3d 781 (9th Cir. 2014) (agencies must take a "hard look" at environmental consequences under NEPA)