Endangered Species Law & Policy

On December 3, 2015, the U.S. Court of Appeals for the Ninth Circuit affirmed the U.S. District Court for the District of Oregon’s denial of a preliminary injunction sought by environmental plaintiffs to enjoin the Douglas Fire Complex Recovery Project in Oregon’s Klamath Mountains.  Cascadia Wildlands v. Thrailkill, No. 14-35819 (9th Cir. Dec. 3, 2015).  The environmental groups asserted that the Bureau of Land Management’s (BLM) combined recovery project and logging plan to salvage acreage burned by the Douglas Complex Fire would irreparably harm the threatened northern spotted owl (Strix occidentalis caurina).  Specifically, the plaintiffs challenged the U.S. Fish and Wildlife Service’s (Service) biological opinion (BiOp), which concluded that the recovery project was not likely to jeopardize the survival of the species or destroy or adversely modify its critical habitat.

The plaintiffs claimed that the BiOp violated the Endangered Species Act (ESA) by failing to apply the best available science regarding: (1) the effect of barred owls on the Service’s detection of spotted owls; (2) the effect of wildfires on spotted owl habitat and home range; and (3) the consistency of BLM’s recovery project with the spotted owl recovery plan.  The plaintiffs’ primary argument questioned the Service’s survey methodology for determining species presence, asserting that barred owls, which are predators of the northern spotted owl, make northern spotted owls less likely to respond to survey calls when those predators are present.  The District Court found that the Service adequately acknowledged and accounted for the potential impact of barred owls on spotted owl detectability, and the BiOp specifically referenced the presence of barred owls and the effect of barred owls’ presence.  Similarly, the District Court rejected the remaining arguments based upon the BiOp’s thorough, reasoned…analysis of the issues and the nonbinding nature of ESA recovery plans.

The Ninth Circuit upheld the District Court’s ruling that the plaintiffs had not demonstrated a likelihood of success on the merits because the Service’s analysis and conclusions in the BiOp were based upon the best available science—a series of long-term and uniform BLM surveys—and were not arbitrary, capricious, or otherwise in violation of the law.