Dec 172014
 

The Ninth Circuit yesterday affirmed a lower court order upholding federal agencies' review and approval of the Beaverslide Project and its effect on the threatened Northern spotted owl (Conservation Congress v. Finley, 12-16916).

See below for a summary of the decision, which addresses claims brought under the ESA, NFMA and NEPA. Follow the link in the first paragraph for the whole decision, or scroll down to read it.

The judges on the decision were Chief Judge Sidney R. Thomas and Circuit Judges Diarmuid F. O’Scannlain and M. Margaret McKeown. Thomas wrote the opinion.

The district judge whose opinion was affirmed is Samuel Conti. (District court opinion)

 Summary (which "constitutes no part of the opinion of the court.
It has been prepared by court staff for the convenience of the reader.")

The panel affirmed the district court’s summary judgment in an action brought under the Endangered Species Act, the National Environmental Policy Act and the National Forest Management Act concerning a lumber thinning and fuel reduction project in northern California, known as the Beaverslide Project, and its effect on the threatened Northern Spotted Owl.

The panel first held the district court properly held that plaintiffs provided sufficient notice of intent to sue to confer jurisdiction on the district court to entertain the Endangered Species Act claims. The panel further held that the Endangered Species Act claims were not moot because the Forest Service’s and Fish and Wildlife Service’s newer post-2012 consultation on the Northern Spotted Owl’s critical habitat focused specifically on addressing the redesignation of critical habitat, and did not remedy the alleged failures in prior consultations to address information in a revised 2011 Recovery Plan for the Northern Spotted Owl.

The panel held that the district court properly granted summary judgment to the government on the merits of plaintiffs’ claims under the Endangered Species Act. The panel held that the district court properly concluded that the Forest Service did not violate the consultation requirements of 50 C.F.R. § 402.16 because the Forest Service did not fail to consider any allegedly “new information” covered by the 2011 Recovery Plan that was not previously considered. 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 Endangered Species Act.

The panel held that the Forest Service’s and Fish and Wildlife Service’s consultations and conclusions that the Beaverslide Project was not likely to adversely affect the Northern Spotted Owl were adequate under 50 C.F.R. § 402.16, 16 U.S.C. § 1536(a)(2), and the “hard look” standard of National Environmental Policy Act. Their actions therefore were neither arbitrary nor capricious.