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Friends of Animals v. U.S. Fish and Wildlife Service

United States District Court, D. Oregon

July 16, 2015

FRIENDS OF ANIMALS, and PREDATOR DEFENSE, Plaintiffs,
v.
U.S. FISH AND WILDLIFE SERVICE, Defendant,

Jennifer Barnes, Michael Ray Harris, Friends of Animals, Western Region Office, Denver, Colorado, David A. Bahr, Bahr Law Offices, Eugene, Oregon, Attorneys for plaintiffs.

Billy J. Williams, Coby Healy Howell, U.S. Department of Justice, Environment and Natural Resources Division, Portland, Oregon, Attorneys for defendant.

OPINION AND ORDER

ANN AIKEN, Chief District Judge.

Plaintiffs Friends of Animals and Predator Defense move for summary judgment pursuant to Fed.R.Civ.P. 56. Defendant U.S. Fish and Wildlife Service ("FWS") filed a cross-motion for summary judgment. For the reasons set forth below, plaintiffs' motion is denied and FWS' motion is granted. This case is dismissed.

BACKGROUND

This case surrounds a conflict of two species - the northern spotted owl ("NSO") and the barred owl and, by extension, FWS' decision to issue a permit under the Migratory Bird Treaty Act ("MBTA") authorizing the take of approximately 3, 600 barred owls, over a four year period and within a confined geographical region, to address declining NSO populations.

NSOs are secretive, mostly nocturnal, monogamous, long-lived, and tend to mate for life; however, pairs usually do not nest every year and nesting pairs are not successful every year. 55 Fed. Reg. 26, 114 (June 26, 1990). Although the present range of the NSO spans from southwestern British Columbia through the coastal range of northwestern California, the majority of the current population is found in the old-growth and mature forest habitats of the Oregon Cascades and the Klamath Mountains in southwestern Oregon and northwestern California. Id. at 26, 114-15.

The barred owl, while native to eastern North America, expanded its range to western North America over the past century. Administrative, Record ("AR") 34764. In other words, the range of the barred owl now completely overlaps that of the NSO; due to a dramatic increase in the number of barred owls over the past few decades, they regularly outnumber NSOs in shared habitat. AR 00013, 00119, 34764-65. The diets of these two species also overlap, by as much as 76% in some regions, but barred owls are "able to eat a much wider variety of food than spotted owls." AR 00135, 34764-65. While, similar to NSOs, barred owls prefer old-growth forest and older forest habitat, they are generally far more adaptable. AR 34764-65. Barred owls have an aggressive nature and have been known to attack NSOs. 55 Fed. Reg. at 26, 191; AR 34764. Because the barred owl competes with the NSO for the same habitat and food, the NSO is typically forced out of such shared habitat resulting in decreased survival. AR 00013, 00119, 00135.

The NSO was listed as "threatened" under the Environmental Species Act ("ESA") in 1990. 55 Fed. Reg. at 26, 114. As such, FWS was required to develop a recovery plan geared towards improving NSO conservation and survival. 16 U.S.C. ยง 1533(f). An initial plan was drafted in 1992, amended in 2008, [1] and ultimately superceded in by the current version in 2011 ("2011 Recovery Plan"). AR XXXXX-XXX. Along with past and current habitat degradation due to timber harvest and natural catastrophic events, the 2011 Recovery Plan identified increased competition from barred owls as one of the three primary threats to the NSO and required immediate consideration, as information garnered since the 1990 listing revealed that barred owls posed a significant and immediate danger to the NSO throughout its range. AR 34648, 34704, 34724, 34764-66; 55 Fed. Reg. at 26, 173.

Ultimately, FWS identified 33 specific Recovery Actions in the 2011 Recovery Plan. AR 34635. One of these, Recovery Action 29, involved the design and implementation of "large-scale control experiments to assess the effects of barred owl removal on Spotted Owl site occupancy, reproduction, and survival." AR 34727. The 2011 Recovery Plan recognized the rapid and severe threat from barred owls on NSOs and therefore recommended that Recovery Action 29 be initiated as soon as possible in the form of well-designed removal experiments. Id . According to FWS, these experiments "have the potential to substantially expand [the agency's] knowledge of the ecological interactions between spotted owls and barred owls, " and would be designed to provide the "most useful scientific information." Id.

Due to the potentially controversial nature of Recovery Action 29, FWS convened a stakeholder group and employed a bio-ethicist to inform the process of developing the removal study proposal. AR 00737, 01047. Individuals were invited to share their respective views on FWS' proposal and FWS provided educational meetings to explore relevant possibilities. Id . In December 2009, FWS published notice to prepare an environmental impact statement ("EIS") to explore various alternatives and identify significant issues. AR 00738. The public comment period ran until January 2010; "a total of 54 written comment letters, memos, and emails from 54 individual submitters" were received. AR 00738, 01049. In addition, FWS conducted several meetings, conference calls, and discussions with other federal agencies that would be involved in the proposed study. Id . Information gleaned from this process was then used to formulate a draft EIS. AR 00715-17.

In July 2013, FWS issued the final EIS. AR 00096-600. It evaluated certain cumulative impacts, as well as nine different alternatives, which primarily varied by experimental methods, including the number and distribution of study areas, the type of study, and the method of removal. AR 00125-26, 00143-79, 00372. Because the population of barred owls is robust, FWS concluded that the study would not affect the viability of this species. AR 00129-30, 00257-75. FWS also found that, without continued management, which was not reasonably foreseeable, barred owls would recover to pre-removal study numbers within three to five years after the study was complete. AR 00138, 00372.

The final EIS similarly examined the effects of this removal study on NSOs. AR 00131. On-going demographic studies demonstrated a 2.9% decline in NSO populations per year since 1990. AR 00276. Moreover, the proportion of NSO sites occupied by barred owls in some study areas increased from less than 5% in 1990 to 70% in 2008, and the rate of recruitment of new NSOs into these areas was negatively correlated with the presence of barred owls. AR 00277. FWS hypothesized that NSO site occupancy, survival, and reproduction would likely increase on the treatment areas following barred owl removal, resulting in beneficial effects to this threatened species for the duration of the study. AR 00281.

In September 2013, FWS issued its record of decision ("ROD") regarding the selected preferred alternative, explaining that "it would provide for a strong, scientifically-credible experiment with a high power to detect the effect of the barred owl removal on spotted owl populations, and provide results across the range of the spotted owl in a timely manner, " especially in light of the fact that the effect of proposed action on the barred owl population would be "negligible." AR 00012-24. The Forest Service and the National Park Service ultimately supported the removal study. AR 02787, 14414, 14454.

Based on the final EIS and ROD, FWS submitted an application for a scientific collecting permit to authorize the lethal and non-lethal take of barred owls under the MBTA. AR 00018, 01395-1422. This application included a detailed explanation of the study design, as well as an explanation of the removal methodologies. Id . In September 2013, FWS determined that the application met the regulatory criteria and issued a permit for the take of up to 2, 500 barred owls for the first three years of the study period. AR 00001-08.

Plaintiffs subsequently filed a complaint in the U.S. District Court for the Eastern District of California, which was dismissed in August 2014 for lack of standing. See generally Friends of Animals v. Jewell, 2014 WL 3837233 (E.D.Cal. Aug. 1, 2014). Later that same month, FWS sought to amend its take permit. AR 35797. Specifically, due to funding issues, which caused a delay in initiating removal efforts in other study areas, FWS anticipated that substantially fewer barred owls would be taken during the remaining two years of the permit period and thus sought modification. Id . FWS again went through each of the regulatory criteria and made findings to evaluate whether the new application was consistent with its permitting regulation. AR 35780-83. It also found that this amendment did not trigger the obligation to conduct a supplemental analysis pursuant to the National Environmental Policy Act ("NEPA") and/or reinitiate its consultation duties under the ESA. AR 35784-85. Accordingly, FWS issued an amended permit authorizing the take of 1, 600 barred owls. AR 25788-91.

In September 2014, plaintiffs commenced the present lawsuit, asserting that FWS' permit violated NEPA and the MBTA. In February 2015, plaintiffs moved for summary judgment. In April ...


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