CONSERVATION CONGRESS, a nonprofit corporation, Plaintiff-Appellant, and Environmental Protection Information Center, a nonprofit corporation, Plaintiff, v. Nancy FINLEY, in her official capacity as Field Supervisor, Arcata Fish and Wildlife Office; U.S. Fish & Wildlife Service, an administrative agency of the United States Department of the Interior; Tyrone Kelley, in his official capacity as Forest Supervisor, Six Rivers National Forest; United States Forest Service, an administrative agency of the United States Department of Agriculture, Defendants-Appellees, Trinity River Lumber, Intervenor-Defendant-Appellee.
No. 12-16916.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Oct. 8, 2014. Filed Dec. 16, 2014.
611
Scott W. Horngren (argued), American Forest Resource Council, Portland, OR, for Intervenor-Defendant-Appellee.
Before: SIDNEY R. THOMAS, Chief Judge, and DIARMUID F. O‘SCANNLAIN and M. MARGARET McKEOWN, Circuit Judges.
OPINION
THOMAS, Chief Judge:
We again consider the fate of the threatened Northern Spotted Owl, this time in the context of a lumber thinning and fuel reduction project in northern California, known as the Beaverslide Project. Conservation Congress contends that the federal government violated various national environmental laws in failing to consult adequately as to the project‘s potential effects on the owl.1 The district court granted summary judgment in favor of the government, and we affirm.
I
The Beaverslide Project is located on approximately 13,241 acres of national forest land in Trinity County, California. According to the United States Forest Service, the project‘s two main purposes are to protect against the current risk of wildfires due to the dense forest, and to provide a sustainable, long-term timber supply to local communities. The project calls for commercial thinning of trees, reduction of fuels, and the creation of fuel corridors, among other treatments.
The Northern Spotted Owl is a nocturnal predator that occupies forest land stretching from southwest British Columbia through Washington, Oregon, and California. The owl has been listed as a threatened species under the Endangered Species Act,
A
The Forest Service and the Fish and Wildlife Service consulted on the project‘s potential effects on the Northern Spotted Owl. Both the Endangered Species Act and the National Environmental Policy Act (“NEPA“),
According to the implementing regulations, the first step in the consultation process is for the acting agency to independently determine whether its actions “may affect” an endangered or threatened species or that species‘s habitat.
NEPA is “our basic national charter for protection of the environment.” Ctr. for Biological Diversity v. U.S. Forest Serv., 349 F.3d 1157, 1166 (9th Cir.2003) (citation and internal quotation marks omitted). The “twin aims” of NEPA are first, to “place[] upon an agency the obligation to consider every significant aspect of the environmental impact of a proposed action,” and second, to “ensure[] that the agency will inform the public that it has indeed considered environmental concerns in its decisionmaking process.” Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 97 (1983) (citation omitted). Unlike the Endangered Species Act, NEPA does not provide substantive protections, only procedural ones—it “exists to ensure a process.” The Lands Council v. McNair, 537 F.3d 981, 1000 (9th Cir.2008) (en banc) (citation and internal quotation marks omitted), overruled on other grounds by Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
B
To comply with the Endangered Species Act, the Forest Service issued a Biological Assessment in September 2009, which independently analyzed the Beaverslide Project and concluded that the project “may” but was “not likely to adversely affect” the Northern Spotted Owl. In October 2009, the Fish and Wildlife Service agreed with the Forest Service‘s conclusion in a Letter of Concurrence.
In May 2010, the Forest Service issued an “Amendment # 1” to its Biological Assessment, responding to anticipated changes in the Forest Service‘s Supplemental Environmental Impact Statement, discussed further below. The Forest Service‘s determination that the project “may affect” but was “not likely to adversely affect” the owl remained unchanged. In September 2011, the Fish and Wildlife Service again agreed with this determination in a Technical Assistance Letter. By this time, the Fish and Wildlife Service‘s 2011 Recovery Plan was available, and the Technical Assistance Letter also concluded that the Beaverslide Project was consistent with the plan‘s recommendations. All other consultation prior to the letter predated the revised plan.
In May 2011, Conservation Congress sent a notice of intent to sue under the Endangered Species Act‘s citizen-suit provision to the agencies, as required by
After litigation in this case had commenced, the agencies informed us that they conducted one final round of consultation on the Beaverslide Project. In December 2012, the Fish and Wildlife Service issued a rule revising the designation of critical habitat for the Northern Spotted Owl. In response, the Forest Service issued a new assessment in March 2013, analyzing how the change in the owl‘s critical habitat designation affected the project. It again concluded that the project was not likely to adversely affect the owl. The Fish and Wildlife Service also separately prepared a Biological Opinion in response to its new rule, and concluded that the project would not result in destruction or adverse modification of the owl‘s habitat.
Concurrent with its consultation under the Endangered Species Act, the Forest Service also took steps to comply with NEPA. In November 2009, it issued its
Conservation Congress brought suit against the Forest Service and Fish and Wildlife Service. Its amended complaint, filed in January 2012, alleged that the agencies violated the Endangered Species Act, NEPA, and the National Forest Management Act in their consultation on the Beaverslide Project.2 On July 2, 2012, the district court granted summary judgment to the agencies on all claims. Conservation Congress timely appealed the district court‘s order. On April 12, 2013, the agencies filed a Suggestion of Partial Mootness in this Court, describing their post-2012 consultation on the Northern Spotted Owl‘s critical habitat and arguing that this mooted Conservation Congress‘s claims under the Endangered Species Act.
We have jurisdiction over this case pursuant to
Judicial review of NEPA and Endangered Species Act claims is conducted under the Administrative Procedure Act, which allows courts to overturn agency action only if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Kraayenbrink, 632 F.3d at 481 (quoting
II
A
The district court properly held, contrary to the government‘s assertions, that Conservation Congress provided sufficient notice of intent to sue to confer jurisdiction on the district court to entertain the Endangered Species Act claims. The Act precludes the commencement of citizen suits “prior to sixty days after written notice of the violation has been given to the Secretary, and to any alleged violator of any such provision or regulation.”
No one disputes that Conservation Congress provided written notice over sixty days prior to filing its complaint, but the agencies allege that the notice was insufficient because it did not inform them that Conservation Congress intended specifically to argue that the agencies failed to consult about the project‘s short-term effects on the owl. The district court disagreed, finding that “[w]hile Plaintiffs’ notice could have been more specific, it provided sufficient detail to put Defendants on notice of the violations set forth in Plaintiffs’ complaint.”
We agree. The purpose of the Endangered Species Act‘s notice provision is “to put the agencies on notice of a perceived violation of the statute” and to give them the “opportunity to review their actions and take corrective measures if warranted.” Sw. Ctr. for Biological Diversity, 143 F.3d at 520 (citation omitted). However, a notice need not provide the exact details of the legal arguments that the plaintiffs intend to eventually make. See Marbled Murrelet v. Babbitt, 83 F.3d 1068, 1072-73 (9th Cir.1996) (notice that focused almost exclusively on alleged violations under section 9 of Endangered Species Act was sufficient even though plaintiffs ultimately sued under section 7).
Here, Conservation Congress‘s second notice of intent specifically asserted, under a heading entitled “Revised Spotted Owl Recovery Plan and the need for additional habitat protection,” that the consultation at hand “did not discuss the management recommendations detailed in the revised recovery plan.” This notice could indeed have been more specific, as the district court observed, but it was sufficient to notify the agencies that Conservation Congress intended to sue in part based on the recommendations in the 2011 Recovery Plan regarding possible short-term effects to the Northern Spotted Owl. The notice was sufficient to satisfy the requirements under the Endangered Species Act, and the district court therefore had jurisdiction to consider the claims.
B
The Endangered Species Act claims are not moot, as the government contends. “A claim is moot if it has lost its character as a present, live controversy.” Am. Rivers v. Nat‘l Marine Fisheries Serv., 126 F.3d 1118, 1123 (9th Cir.1997) (citation omitted). “If an event occurs that prevents the court from granting effective relief, the claim is moot and must be dismissed.” Id. (citation omitted). The party alleging mootness “‘bears a heavy burden’ in seeking dismissal.” Rosemere Neighborhood Ass‘n v. EPA, 581 F.3d 1169, 1173 (9th Cir.2009) (quoting Friends of the Earth v. Laidlaw Envtl. Serv., Inc., 528 U.S. 167, 189 (2000)).
The agencies argue that the new consultation between the Forest Service and Fish and Wildlife Service following the 2012 redesignation of the owl‘s critical habitat constitutes a reinitiation of consultation under the Endangered Species Act that utilizes the best available data in the 2011 Recovery Plan. Thus, the agencies assert that whatever remedial actions Conservation Congress could obtain under the Endangered Species Act have already been performed.
We recently rejected a similar mootness argument, made by the same agencies against the same plaintiffs and arising out of a nearly identical new round of consultation. In Conservation Congress v. United States Forest Service, 720 F.3d 1048, 1053-54 (9th Cir.2013), Conservation Congress appealed a denial of its motion for a preliminary injunction against the Forest Ser-
We are presented with the same circumstance here. The agencies’ newer consultation focuses specifically on addressing the redesignation of critical habitat, and does not remedy the alleged failures in prior consultations to address information in the 2011 Recovery Plan. Conservation Congress‘s claims under the Endangered Species Act are therefore not moot.
III
The district court properly granted summary judgment to the government on the merits of Conservation Congress‘s claims under the Endangered Species Act.
A
The district court properly concluded that the Forest Service did not violate the consultation requirements of
Here, Conservation Congress alleges that the 2011 Recovery Plan contained “new information” that was “not previously considered” and therefore that the Forest Service violated
Assuming for argument‘s sake that at least some information in the 2011 Recovery Plan is new, which is far from clear,3 we are unpersuaded that the Forest Service failed to consider any of the allegedly new information covered by the 2011 Recovery Plan. Conservation Congress contends that although the Forest Service considered the overall long-term benefits of the Beaverslide Project to the owl, it did not sufficiently consider potential short-term effects, contrary to the suggestions of the plan. However, a close reading of the Forest Service‘s Biological Assessment reveals that it directly and sufficiently addressed several short-term effects, including the likely effects of the
Conservation Congress also argues that the Forest Service failed to consider the plan‘s new information, particularly drawing from the Dugger study, on how to combat the threat of invasive barred owls. This assertion is also contradicted by an examination of the record. Competition from barred owls has long been recognized as a major threat to the Northern Spotted Owl, and was considered in the Forest Service‘s Biological Assessment. Moreover, in response to Conservation Congress‘s notice of intent to sue, the Forest Service analyzed whether it needed to reinitiate consultation based on the Dugger study or other information on barred owls in the 2011 Recovery Plan, and concluded it did not.
Finally, Conservation Congress contends that the Forest Service did not follow recommendations in the 2011 Recovery Plan and in the Forsman study to develop a broader conception of “high value” habitat for the Northern Spotted Owl. But declining to adopt particular recommendations in a recovery plan or a study—neither of which is binding on an agency—does not constitute failing to consider them under
The Forest Service did not fail to consider “new information” that “reveals effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered.” Therefore, the duty to consult was not triggered, and the district court properly granted summary judgment on the claim.
B
The district court also properly concluded that the agencies did not fail to use “the best scientific and commercial data available,” as required by the
“The determination of what constitutes the ‘best scientific data available’ belongs to the agency‘s ‘special expertise,’ and thus when examining such a determination, ‘a reviewing court must generally be at its most deferential.‘” Jewell, 747 F.3d at 602 (quoting Baltimore Gas & Elec. Co., 462 U.S. 87, 103). Agencies “must support their conclusions with accurate and reliable data,” but “so long as an agency considers all relevant data, it may rely on that available evidence even when it is imperfect, weak, and not necessarily dispositive.” Connaughton, 752 F.3d at 764.
Conservation Congress‘s claims that the agencies failed to use “the best scientific and commercial data available” are based on the same arguments it employed in arguing its consultation claims. It contends that both the Forest Service and the Fish and Wildlife Service failed to use the best available information on short-term effects to the owl, the threat of the barred owl, and broader habitat definition and protection.
However, as we have previously explained, the Forest Service considered the available data and scientific information in reaching its conclusions. Under our deferential standard of review, we are not permitted to substitute our judgment for the agency‘s in determining which scientific data to credit, so long as the conclusion is supported by adequate and reliable data. The Forest Service‘s analysis satisfied the requirement of the Endangered Species Act.
As to the Fish and Wildlife Service, its letters clearly and extensively reference
IV
The district court properly granted summary judgment on Conservation Congress‘s NEPA claims. Courts employ a “rule of reason” to decide “whether the EIS contains a reasonably thorough discussion of the significant aspects of probable environmental consequences.” Neighbors of Cuddy Mountain v. U.S. Forest Serv., 137 F.3d 1372, 1376 (9th Cir.1998) (citation and internal quotation marks omitted). This standard is considered “essentially the same” as the standard of abuse of discretion, and our analysis under it “consists only of insuring that the agency took a ‘hard look‘” at the environmental impacts. Id. An agency sufficiently takes a “hard look” when it conducts a “full and fair discussion of significant environmental impacts.” W. Watersheds Project v. Abbey, 719 F.3d 1035, 1047 (9th Cir.2013) (quoting
Conservation Congress contends that the Forest Service violated NEPA because its two issued EISs failed to take the requisite “hard look” at information in the 2011 Recovery Plan describing potential short-term effects to the Northern Spotted Owl and the threat of barred owls. However, the two EISs prepared by the Forest Service contain full and fair discussions of possible short-term effects to the owl. Indeed, the Forest Service devotes entire sections of its reports to analyzing the project‘s possible consequences to the owl‘s habitat and to the owl‘s most common prey. This analysis includes discussion of numerous short-term effects. Likewise, the EISs directly respond to concerns about barred owls by discussing findings on whether barred owls are present in the project area, and how the project affects the barred owl threat. We therefore agree with the district court that the Forest Service took the requisite “hard look” at potential dangers to the Northern Spotted Owl and, using its expertise and discretion, reached its conclusion through a reasoned analysis.
V
The Forest Service‘s and Fish and Wildlife Service‘s consultations and conclusions that the Beaverslide Project is not likely to adversely affect the Northern Spotted Owl are adequate under
AFFIRMED.
SIDNEY R. THOMAS
CHIEF JUDGE, UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT