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Cascadia Wildlands v. Thrailkill

United States District Court, D. Oregon

September 23, 2014

JIM THRAILKILL, Field Supervisor, Roseburg Field Office, in his capacity, UNITED STATES FISH AND WILDLIFE SERVICE, an agency within the United States Department of Interior, et al., Defendants, ROUGH & READY LUMBER LLC, SWANSON GROUP MFG. LLC, and BOISE CASCADE WOOD PRODUCTS LLC, Defendant-Intervenors

For Cascadia Wildlands, Oregon Wild, Center For Biological Diversity, Plaintiffs: Jordan R. Beckett, LEAD ATTORNEY, Beckett Law Office, Ashland, OR; Susan Jane M. Brown, LEAD ATTORNEY, Portland, OR.

For Jim Thrailkill, United States Fish and Wildlife Service, Defendants: John Brett Grosko, LEAD ATTORNEY, U.S. Department of Justice, Environmental & Natural Resources Div., Washington, DC.

For Boise Cascade Wood Products LLC, Rough & Ready Lumber LLC, Swanson Group Mfg. LLC, Intervenor Defendants: Scott W. Horngren, American Forest Resource Counsel, Portland, OR.

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THOMAS M. COFFIN, United States Magistrate Judge.

Plaintiffs bring this action pursuant to the Administrative Procedures Act, 5 U.S.C. § § 701 et seq. They seek to enjoin a federal action allowing logging activities in an area affected by fire.

Presently before the court is plaintiffs' motion (#13) for a preliminary injunction. Plaintiffs make numerous arguments in support of multiple claims and counts, but ultimately the arguments are not persuasive and, for the reasons stated below, the motion for a preliminary injunction is denied.

Factual Background & Legal Background

The Douglas Fire Complex and the Douglas Fire Complex Recovery Project

The Douglas Fire Complex burned approximately 48,000 acres of federal and non-federally managed land in the southern Oregon Klamath Mountains.

In response to the Douglas Fire Complex, the Medford District of the Bureau of Land Management (BLM) prepared the Douglas Fire Complex Recovery Project. The BLM issued the Douglas Fire Complex Recovery Project Environmental Assessment (EA) for public comment on May 7, 2014, and took public comment until July 22, 2011. Plaintiffs provided timely comments on the Douglas Fire Complex Recovery Project EA. The BLM issued a Decision Record and Finding of No Significant Impact (DR/FONSI) approving the Douglas Fire Complex Recovery Project on June 26, 2014. The BLM's DR/FONSI authorizes salvage logging on approximately 1,276 acres of BLM land, and includes hazard tree removal along roads (to which Plaintiffs do not object), as well as logging of interior forests for economic recovery. The BLM submitted a Biological Assessment (BA) to FWS on April 28, 2014, determining the project " may affect

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and is likely to adversely affect" (LAA) spotted owls and their critical habitat. FWS subsequently issued the challenged BiOp. The Douglas Fire Complex Salvage Timber Sales include the Rogue Cow, Burnt Rattler, and Rock Star Timber Sales. The sales are located in the Grants Pass Resource Area of the BLM's Medford District, and logging operations are currently underway.

FWS Biologic Opinion for the Douglas Fire Complex Recovery Project

on June 25, 2014, in response to BLM's submission of its biological assessment, the FWS issued a Biological Opinion (BiOp) of the Douglas Fire Complex Recovery Project. In the BiOp, " the Service concludes that the proposed Project is likely to incidentally take 14 adult and up to 10 young spotted owls[1], at seven sites. The take is in the form of harm caused by habitat destruction or degradation via timber harvest of up to 33 acres of NRF[2] habitat and 1,049 acres of PFF[3] habitat that is likely to significantly disrupt the breeding, feeding, and sheltering behavior of these spotted owls to an extent that causes injury or death. BiOp, 59. The BiOp also concludes that the Douglas Fire Complex Recovery Project " is not likely to result in jeopardy to the species or destruction or adverse modification of critical habitat." BiOp, 59.

The Endangered Species Act

Congress enacted the ESA with the purpose to " provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved," and to " provided program for the conservation of such endangered species, and threatened species." 16 U.S.C. § 1531(b). An Endangered Species is " any species which is in danger of extinction throughout all or a significant portion of its range." 16 U.S.C. § 1532(6); 50 C.F.R. § 424.02(e). A Threatened Species is " any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. 16 U.S.C. § 1532(19); 50 C.F.R. § 424.02(m). The northern spotted owl is a threatened species.

Section 7 of the ESA requires federal agencies to conserve species listed as endangered or threatened under the ESA, and whenever a federal action may affect an ESA-listed species, the agency undertaking such an action must consult the Service having jurisdiction over the relevant listed species. 16 U.S.C. 1536(a)(3). The United States Fish and Wildlife Service (FWS) is responsible for administering the ESA with respect to terrestrial wildlife. 50 C.F.R. § 402.01(b). FWS, as the consulting agency for terrestrial wildlife, evaluates the effects of the proposed federal action on the survival and recovery of Endangered or Threatened species and any potential destruction or adverse modification of critical habitat in a biological opinion. 16 U.S.C. § 1536(a)(2).

A biological opinion is the heart of the ESA Section 7 consultation process, which requires federal agencies to " insure that any action authorized, funded, or carried out by such agency. . .is not likely to jeopardize the continued existence of any endangered species or threatened species." 16 U.S.C. § 1536(a)(2). The biological opinion must be based on " the best scientific and commercial data available or which can be obtained during the consultation for

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an adequate review of the effects that an action may have upon listed species or critical habitat." 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.14(d). In the biological opinion, the FWS evaluates: 1) the current status of the listed species or critical habitat; 2) the effects of the action; and 3) the cumulative effects to determine if the proposed action will jeopardize the existence of the listed species. 50 C.F.R. § § 402.14(g)(2), (g)(3).

If the biological opinion concludes that jeopardy is not likely and that there will not be adverse modification of critical habitat, or that there is a " reasonable and prudent alternative" to the agency action that avoids jeopardy and adverse modification and that the " incidental taking" of endangered or threatened species will not violate section 7(a)(2), the consulting agency can issue an Incidental Take Statement (ITS) which, if followed, exempts the action agency from the prohibition on takings found in Section 9 of the ESA. Section 9 of the ESA makes it unlawful for any person to take an ESA-listed species. 16 U.S.C. § 1538 (a)(1).[4]

Section 4 of the ESA states that FWS " shall develop and implement plans. . .referred to as 'recovery plans' for the conservation and recovery" of species listed under the Act. 16 U.S.C. § 1533(f). " Conservation" refers to " the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this Act are no longer necessary," and " conservation" is synonymous with the " recovery" of a species in the ESA context. 16 U.S.C. § 1532(3). Congress expects FWS to proactively utilize the conservation measures contained in recovery plans to remove the species from the protection of the ESA. 16 U.S.C. § § 1533(f)(1)(B)(i)-(iii).

Administrative Procedures Act

The APA confers a right of judicial review on any person that is adversely affected by agency action. 5 U.S.C. § 702. Upon review, the court shall " hold unlawful and set aside agency actions ... found to be arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law." 5 U.S.C. § 706(2)(A).

A decision is arbitrary and capricious if the agency has " relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence in front of the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Motor Vehicle Mfrs. Ass'n. v. State farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983).

Standards for Preliminary Injunction

In the landmark case of Winter v. Natural Resources Defense Council, the Supreme Court clarified that in order to obtain an injunction, a plaintiff must establish that (1) it is likely to succeed on the merits, (2) it is likely to suffer irreparable harm in the absence of injunctive relief,[5]

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(3) the balance of the equities tips in its favor[6], and (4) an injunction is in the public interest. 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008).

In order to secure an injunction, a plaintiff must satisfy all four Winter prongs. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir.2011).

As to likelihood of success on the merits, the long-entrenched but lesser " serious questions" standard remains viable after Winter. Cottrell, 632 F.3d at 1134-35. In Cottrell, the Court held that serious questions going to the merits and a hardship balance that tips sharply toward the plaintiff can support issuance of an injunction, assuming the other two elements of the Winter test are also met. Id. at 1132. Cottrell clarifies that district courts retain discretion to employ a sliding scale, and that plaintiffs are entitled to judicial application of the lesser " serious questions" test upon satisfactory showing on the other three Winter prongs. Id. at 1135 (" Because it did not employ the 'serious questions' test, the district court made an error of law in denying the preliminary injunction sought by AWR. We conclude that AWR has shown that there is a likelihood of ...

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