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Friends of Animals v. Sheehan

United States District Court, D. Oregon, Eugene Division

December 12, 2018

FRIENDS OF ANIMALS, Plaintiff,
v.
GREG SHEEHAN, in his official capacity as the Acting Director of the United States Fish and Wildlife Service, and THE UNITED STATES FISH AND WILDLIFE SERVICE, an agency of the United States, Defendants.

          OPINION AND ORDER

          Ann Aiken United States District Judge

         Plaintiff Friends of Animals brings this suit against defendants, Greg Sheehan, in his official capacity, and The United States Fish and Wildlife Service ("FWS") alleging that permits and agreements made by FWS violate the Endangered Species Act ("ESA") and National Environmental Policy Act ("NEPA"). The contested FWS actions are part of an experiment to gain data on the relationship between Barred Owl removal and Northern Spotted Owl recovery. Both parties have filed cross motions for summary judgment, (docs. 39 and 42) For the reasons set forth herein, plaintiffs motion is denied, and defendants' motion is granted.

         BACKGROUND

         The Northern Spotted Owl is a threatened species that is reliant on the old growth and mature forests of the Pacific Northwest for its continued survival. The Spotted Owl was listed under the ESA in 1990, following decades of wide-scale industrial logging in the region. FWS designated critical habitat for the Spotted Owl in 1992, encompassing nearly 6.9 million forested acres in Oregon, Washington, and Northern California.

         The Barred Owl is native to eastern North America but expanded its range into the Pacific Northwest over the past century. Barred Owls now outnumber Spotted Owls in many portions of their range. Barred Owls are not a threatened species and are invasive to the region. They compete with Spotted Owls for territory, and can even attack them, displacing Spotted Owls from their prime habitat.

         The 2011 Recovery Plan for the Northern Spotted Owl determined that competition from Barred Owls for niche habitat was one of three primary threats to Spotted Owls and required immediate consideration. Action 29 of the Recovery Plan consists of "large-scale control experiments to assess the effects of Barred Owl removal on Spotted Owl site occupancy, reproduction, and survival." AR 023927. FWS issued its Final Environmental Impact Statement ("FEIS") for implementation of Recovery Action 29 in July 2013, and a Record of Decision ("ROD") in September 2013. The FEIS noted that all study areas under the preferred alternative contained nonfederal land, as much of the forest land in the region has a "checkerboard" ownership pattern, interspersing federal lands with privately held parcels and state-owned timber lots.

         This litigation arose because FWS entered into Safe Harbor Agreements ("SHAs") with nonfederal landowners Roseburg Resources, Oxbow Timber I, Weyerhaeuser, and the Oregon Department of Forestry ("ODF") in order to conduct the experiment. The experiment establishes designated removal areas, where FWS will actively remove Barred Owls from the habitat and observe if (or how many) Spotted Owls recolonize the area-as well as control areas, where FWS will merely monitor the populations of both species without intervention. The SHAs allow FWS to access these private landholder's properties for the purposes of data collection, as well as the lethal removal of Barred Owls, while shielding the landowners from increased ESA obligations if Spotted Owl populations rise as a result of Barred Owl removal.

         FWS issued Enhancement of Survival Permits ("permits") to the landowners. These permits designate "baseline" areas, where resident Spotted Owls have been detected by FWS in the last three years, and do not allow any take in those areas. The permits also define "non-baseline" areas, where no resident Spotted Owls have been observed by FWS for at least three years, and permits take in those areas. However, the permits prohibit practices in the non-baseline areas that could threaten a nesting pair of Spotted Owls with viable young during the nesting the fledging season. These restrictions and take allowances will remain in force for 10 years for the timber companies, and 12 years for ODF.[1]

         Between December 2015 and November 2016 the FWS issued a Biological Opinion ("BiOp") for each SHA and permit in accordance with Section 7 of the ESA. FWS determined that these actions would not put the Spotted Owl in jeopardy because the potential habitat loss in the non-baseline areas was small in comparison with the Spotted Owl's total habitat. FWS noted that the ODF permit would allow removal of critical habitat, but FWS determined this removal would not amount to adverse modification.

         Plaintiff has challenged this program previously. It brought two unsuccessful lawsuits seeking to halt the Barred Owl removal experiment under the Migratory Bird Treaty Act. See Friends of Animals v. Jewell, 2014 WL 3837233 (E.D. Cal. Aug. 1, 2014); Friends of Animals, 2015 WL 4429147 (D. Or. July 16, 2015), qff'd, 879 F.3d 1000 (9th Cir. 2018), cert denied, No. 17-1426 (June 11, 2018). There, plaintiffs primary objection was to the killing of the Barred Owls. The background of this matter is also extensively covered in the previous opinions dismissing those cases.

         Plaintiff filed the present complaint before this Court on June 2, 2017, on the theory that the SHAs and permits are unlawful under the ESA because the potential threat of critical habitat loss and Spotted Owl take in non-baseline areas outweighs any conservation benefit realized by the experiment. Plaintiff also alleges the NEPA analysis for these permits and agreements was insufficient and did not adequately consider the impacts of the critical habitat losses authorized by these permits. Thus, plaintiff requests this Court vacate the permits and SHAs, order supplementation to the NEPA documents, and enjoin the experiment.

         LEGAL STANDARD

         Summary judgment is appropriate if "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The moving party has the burden of establishing the absence of a genuine issue of material fact. Id.; Celotex Corp. v. Catrett,477 U.S. 317, 323 (1986). Summary judgment is inappropriate if a rational trier of fact, drawing all inferences in favor of the nonmoving party, could return a verdict in the nonmoving parties favor. Diaz v. Eagle Produce Ltd. P'ship,521 F.3d 1201, 1207 (9th Cir. 2008). "The filing of cross-motions for partial summary judgment or summary judgment does not necessarily mean that the material facts are, indeed, undisputed." Regents, 507 F.Supp.2d at 1077. "[W]hen simultaneous cross-motions for summary judgment on the same claim are before the court, the court must consider the appropriate evidentiary material ...


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