On April 3, 2015, a federal district court in California put the brakes on a proposed logging project, invalidating a habitat conservation plan and incidental take permit issued by the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) under section 10 of the Endangered Species Act (ESA), as well as a biological opinion and incidental take statement issued by NMFS under section 7. Klamath-Siskiyou Wildlands Ctr. v. Nat’l Oceanic and Atmospheric Administration, Case No. 13-cv-03717 (N.D. Cal. Apr. 3, 2015) (pdf).
A project can avoid the general take prohibition in section 9 of the ESA by: (i) complying with the terms of a biological opinion and incidental take statement under section 7 of the ESA, or (ii) complying with the terms of a habitat conservation plan and incidental take permit under section 10 of the ESA. Section 10 of the ESA requires that a habitat conservation plan minimize and mitigate the impacts of the taking to the maximum extent practicable, and that the taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild.
The project at issue in this case was a timber harvest operation in known habitat of the threatened Northern spotted owl (Strix occidentalis caurina) in northern California. The logging project also had the potential to impact threatened Southern Oregon/Northern California Coast coho salmon (Oncorhynchus kisutch) by increasing the introduction of sediment into nearby streams and rivers. In order to proceed with the project, the project proponent submitted a habitat conservation plan (HCP) and obtained an incidental take permit (ITP) from FWS and NMFS to cover take of the spotted owl and coho salmon. The project proponent also obtained biological opinions and incidental take statements from FWS and NMFS with respect to the HCP and ITP.
Under the HCP, the project proponent would harvest timber in 58 owl circles (each owl circle measuring approximately 3,400 acres), while preserving limited habitat in 24 owl circles. Only limited habitat would be conserved by the project proponent because the project proponent owned only portions of the land within the 24 owl circles – sometimes as few as 62 acres; the U.S. Forest Service (Forest Service) owned the bulk of the remaining land. In approving the HCP and issuing the ITP, FWS found, using a weighted average, that the proposed conservation would more than offset the incidental take because project logging would primarily occur in owl circles with low conservation value, whereas conservation would primarily occur in owl circles with high conservation value. In determining the conservation score for an owl circle, FWS considered the entire owl circle, not just the portion owned by the project proponent. A number of environmental groups subsequently challenged the analysis by FWS and NMFS.
With respect to FWS, the court found that by basing its conclusion on the conservation value of the entire owl circle, even though the project proponent controlled only minor portions of the land, the project proponent was allowed to piggyback off of the conservation work of a non-applicant neighbor – in this case the Forest Service. The court also found that the HCP failed to comply with the minimization and mitigation requirements in section 10 because: (i) FWS relied on a mitigation measure that did not obligate the project proponent to actually implement practices that will develop and maintain dispersal habitat, and (ii) the mitigation measure failed to identify any objective criteria by which to measure compliance.
With respect to NMFS, the court found that the 50-year biological opinion issued by NMFS, which was accompanied by an incidental take statement with a duration of 50 years, failed to comply with section 7 of the ESA because it failed to analyze the short-term impacts of the project on the coho salmon, which has a three-year life cycle. The court also found that NMFS’s issuance of the ITP was arbitrary and capricious because the no-jeopardy finding required by ESA § 7 is identical to the survival finding required under §10[.]
Ben Rubin is chair of Nossaman’s Environment & Land Use Group. Ben assists developers, public agencies, landowners and corporate clients on a variety of complex land use and environmental matters. He counsels clients on matters ...
Nossaman’s Endangered Species Law & Policy blog focuses on news, events, and policies affecting endangered species issues in California and throughout the United States. Topics include listing and critical habitat decisions, conservation and recovery planning, inter-agency consultation, and related developments in law, policy, and science. We also inform readers about regulatory and legislative developments, as well as key court decisions.
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