Case 2:20-cv-00243-BLW Document 28 Filed 07/13/20 Page 1 of 35
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`UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF IDAHO
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`Case No. 2:20-cv-00243-BLW
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`MEMORANDUM DECISION
`AND ORDER
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`FRIENDS OF THE CLEARWATER;
`and ALLIANCE FOR THE WILD
`ROCKIES,
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`
`
`Plaintiff,
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` v.
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`JEANNE HIGGINS, Idaho Panhandle
`National Forest Supervisor; UNITED
`STATES FOREST SERVICE, an
`agency of the U.S. Department of
`Agriculture; and UNITED STATES
`FISH & WILDLIFE SERVICE, an
`agency of the U.S. Department of
`Interior,
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`
`
` and
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`STIMSON LUMBER COMPANY,
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`
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`Intervenor-Defendant.
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`Defendants,
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`
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`INTRODUCTION
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`
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`Before the Court is Plaintiffs’ Motion for Preliminary Injunction. Dkt. 7.
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`The Court held a hearing on the motion on June 25, 2020. For the reasons that
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` MEMORANDUM DECISION AND ORDER - 1
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`UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF IDAHO
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`
`
`
`
`
`
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`Case No. 2:20-cv-00243-BLW
`
`MEMORANDUM DECISION
`AND ORDER
`
`FRIENDS OF THE CLEARWATER;
`and ALLIANCE FOR THE WILD
`ROCKIES,
`
`
`
`Plaintiff,
`
` v.
`
`JEANNE HIGGINS, Idaho Panhandle
`National Forest Supervisor; UNITED
`STATES FOREST SERVICE, an
`agency of the U.S. Department of
`Agriculture; and UNITED STATES
`FISH & WILDLIFE SERVICE, an
`agency of the U.S. Department of
`Interior,
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`
`
` and
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`STIMSON LUMBER COMPANY,
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`
`
`
`Intervenor-Defendant.
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`Defendants,
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`
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`INTRODUCTION
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`
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`Before the Court is Plaintiffs’ Motion for Preliminary Injunction. Dkt. 7.
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`The Court held a hearing on the motion on June 25, 2020. For the reasons that
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` MEMORANDUM DECISION AND ORDER - 1
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`Case 2:20-cv-00243-BLW Document 28 Filed 07/13/20 Page 2 of 35
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`follow the Court will deny the motion.
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`BACKGROUND
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`On October 3, 2019 the U.S. Forest Service issued a Decision Notice and
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`Finding of No Significant Impact (FONSI) for the Brebner Flat project. FONSI,
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`Dkt 24-2. The Brebner Flat project is located in the St. Joe Ranger District of the
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`Idaho Panhandle National Forests in Shoshone County, Idaho. Id. The project area
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`includes the Theriault Creek, Kelly Creek, Williams Creek, and Siwash Creek
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`drainages within the St. Joe River watershed. EA, Dkt. 24-1 at 1. The northern
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`boundary of the project includes the wildland-urban interface of Avery, Idaho and
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`Forest Highway 50. Id. at 6. Shoshone County has identified this area as an area of
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`concern for their Community Wildfire Protection Plan. Id. The northern boundary
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`of the project is also within the St. Joe Wild and Scenic River Corridor. Dkt 24-2 at
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`9. However, there are no activities proposed within the corridor. Id.
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`The goals of the project are: 1) To improve forest health and increase
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`vegetation resilience to large scale disturbances such as wild fire, drought, and
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`disease; 2) provide sustainable use of natural resources and benefit local
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`communities; and 3) reduce hazardous fuels to lessen wildfire severity and enable
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`safe fire suppression efforts. Id. at 1. The project area is almost 12,000 acres and
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`will include approximately 1,700 acres of timber harvest and prescribed burning.
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`Dkt. 24-1 at 1. Approximately 10.5 miles of roads will be constructed or
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`reconstructed for the project. Id. at 9-10.
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`In early 2018 the Forest Service issued a scoping notice soliciting public
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`comments on the project. Id. at 6. A draft Environmental Assessment (EA) was
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`issued in March 2019. Id. The final EA was issued in June 2019. Dkt. 24-1.
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`The Final EA found that no federally endangered or threatened wildlife
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`species were likely to be affected by the project. Id. at 25. To determine whether
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`any listed species were present in the project area the Forest Service checked the
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`U.S. Fish and Wildlife Service (USFWS) Information and Planning and
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`Consultation (IPaC) maps for Idaho.1 Wildlife Report, Dkt 24-5 at 3; Hendricks
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`Dec., Dkt. 24-6. The IPaC system creates species lists by cross referencing maps of
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`potential species presence with a map of the project area. Dkt. 24-6 ¶ 3. The Forest
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`Service has been instructed by USFWS to use IPaC to generate a list of federally
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`listed species that may be present in a project area. Id. ¶ 6; Sarensen Dec., Dkt. 24-
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`
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`1 The Forest Service and USFWS discussed the Brebner Flat project at a meeting on
`October 25, 2018. This meeting focused on bull trout, which was the only species presented for
`consultation by the Forest Service. Sarensen Dec. ¶ 15-17, Dkt. 24-9. The USFWS biologist
`present at the meeting does not recall discussing grizzly bears or lynx in connection with the
`project. Id. The biologist states that she had no reason to believe an individual grizzly bear was
`moving trough the action area, and did not consider it inappropriate for the Forest Service not to
`raise the issue during consultation. Id.
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`9 ¶ 4-5. However, the IPaC map is a starting point, and USFWS requires federal
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`agencies to determine for themselves whether listed species may be present in the
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`action area based on species biology and project-specific information. Dkt. 24-6 ¶
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`3. The IPaC website states that an official species list that complies with § 7 of the
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`ESA can only be obtained by making a regulatory review request through the
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`website or from the local field office. Dkt. 7-15 at 4. According to the IPaC map
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`the only endangered species that may be present in the project area is canada lynx.
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`Dkt 24-5 at 2.
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`The wildlife report considered, but did not analyze in detail, impacts to
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`canada lynx and grizzly bears. Dkt 24-5 at 10. The wildlife report found that there
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`would be no effect to lynx because there was a lack of suitable habitat in the
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`project area and lynx are not known or suspected in the project area. Id. at C-1. The
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`wildlife report based its analysis on the Northern Rockies Lynx Management
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`Direction and noted there is no lynx critical habitat on the St. Joe Ranger District,
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`and the nearest Lynx Analysis Unit is 15 miles from the project area. Id.
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`The wildlife report also determined the project would have no effect on
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`grizzly bears. Id. This determination was based largely on the lack of grizzly bear
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`occurrence on the St. Joe Ranger District or the project area. The wildlife report
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`noted that although, “based on current knowledge, the potential for grizzly bear
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`occurrence on the St. Joe Ranger District and in the project area cannot be totally
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`dismissed, there is nothing to suggest any occurrence other than the possibility of
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`transient individuals; with even the potential for that considered to be unlikely.” Id.
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`The wildlife report went on to state the “St. Joe Ranger District is not within any
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`Bear Management Unit, linkage zone, or area of known grizzly bear use.” Id.
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`In response to the Plaintiffs’ notice of intent to sue, the Forest Service asked
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`the USFWS for information regarding bears that have been found near the project
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`area. Dkt. 7-9. The letter notes that a radio collared bear traveled from, and
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`returned to, the Selway-Bitterroot in 2019. While the bear traveled into the Idaho
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`Panhandle National Forest it was never closer than 15 miles to the project. Id. The
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`letter noted that a 2007 bear mortality, and 2018 radio located bear were “also not
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`close to the project area.” Id. In 2017, biologists from the Idaho Department of
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`Fish and Game collected one grizzly bear scat sample from a den approximately 12
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`miles south of the project area. Dkt. 7-10. The biologists were not able to confirm
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`what type of animal used the den, and no grizzly bears were recorded visiting bait
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`stations set a little less than a mile from the den site. Id. On the other hand, the
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`Idaho Department of Fish and Game hunting regulations warn black bear hunters
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`that grizzly bears may be found in big game unit 7, in which the project area sits.2
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`Dkt. 7-12.
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`The main area of concern addressed by the EA, regarding wildlife, was elk
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`security habitat. Dkt. 24-1 at 25. Elk security habitat is habitat that has timbered
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`areas greater than 250 acres more than one-half mile from a motorized route. Id. at
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`26. The project area is located within elk management unit 7-6, which was the
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`geographic scope for the elk security analysis. Id. Elk management unit 7-6 is a
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`low priority management unit. Id. The Forest Plan calls for management activities
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`to maintain existing levels of elk security where possible. Id. The Brebner Flat
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`project—specifically timber harvest and road construction—will reduce elk
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`security habitat by 210 acres in unit 7-6. The Forest Service considered amending
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`the Forest Plan to allow for the reduction in elk security habitat. Dkt. 24-2 at 6.
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`However, after further analysis the Forest Service determined the seasonal closure
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`of an ATV trail in unit 7-6 would offset the loss of elk security habitat. Id. The
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`seasonal closure of the ATV trail would occur from September through December,
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`during elk hunting season. Dkt. 24-1 at 27. This seasonal closure would occur
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`2 Plaintiffs also submitted a news article discussing a grizzly bear that traveled from near
`Montana’s Spar Lake northwest of the project area to somewhere south of the project area.
`However, there is no information on the route the bear took or if it came near the project area.
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`outside of the project area, but still within unit 7-6. The EA shows that this
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`seasonal closure would increase elk security habitat by 314 acres, resulting in a net
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`gain in elk security habitat of 94 acres in unit 7-6 over the no-action alternative.
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`The EA does not explicitly state how the seasonal ATV trail closure would
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`be implemented. Dkt. 24-1 at 27. However, the wildlife report shows that the
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`closure would be implemented by installing a gate on the ATV trail. Dkt. 24-5 at
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`16-17. The EA discusses in some detail how gates are monitored to ensure the
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`security of the gates in elk security habitat. Dkt. 24-1 at 27. The EA notes that
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`gates on the ranger district are generally secure, but there are 5-10 “problem” gates
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`that need to be monitored or repaired annually. Id. The wildlife report indicates
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`that current levels of elk security in the area have been established by seasonally
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`closing roads to motorized use during elk hunting season. Dkt. 24-5 at 18.
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`On page 1 of the EA it states that the “project area … does not include …
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`the wild and scenic river corridor.” On page 7 the EA states that “the wild and
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`scenic river corridor is not proposed for timber harvest.” While the FONSI states
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`that parts of the northern boundary of the project fall within the St. Joe Wild and
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`Scenic River Corridor, no activities are proposed in the corridor, and a section 7(a)
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`evaluation was completed. Dkt. 24-2 at 9.
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`The EA considered impacts to the hydrology of the tributaries that flow into
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`the St. Joe River. Dkt. 24-1 at 19. It also considered the impact to fisheries,
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`specifically the potential for sediment generated from the project to reach the St.
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`Joe River. Id. at 33. The fisheries section of the EA also called out impacts to the
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`St. Joe River. Id. at 37. The project maps attached to the EA also show the project
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`area bordering the St. Joe River.
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`The Forest Service prepared a section 7(a) Evaluation for the Wild and
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`Scenic Rivers Act for the project.3 Dkt. 24-10. The evaluation specifically
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`considered the removal of 15 culverts in the Siwash tributary, which are considered
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`water resource projects. Id. The evaluation found that the culvert removals would
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`not diminish the scenic, recreation, fish, or wildlife, values of the river. The
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`findings of the evaluation were also discussed in the Recreation Report. Dkt. 24-11
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`at 10.
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`The Forest Service received comments from Friends of the Clearwater
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`regarding the lack of analysis in the EA on impacts to the Wild and Scenic River
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`Corridor. Dkt. 24-4 at 8, 11. In its response to these comments the Forest Service
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`noted that the Wild and Scenic Rivers Act was addressed in Appendix B of the
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`3 The Forest Service also prepared a fisheries biological assessment for the project related
`to bull trout and received concurrence from the USFWS that the project may affect, but is not
`likely to adversely affect, bull trout and designated critical habitat. Dkt. 25-4, 25-5.
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`Recreation Report, and concluded that no activities were planned in the corridor,
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`and that water resource activities had been evaluated in a section 7(a) analysis.
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`Plaintiffs now seek a preliminary injunction to prevent timber harvest and
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`road construction in the Brebner Flat Project. Plaintiffs allege the Forest Service
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`violated the Administrative Procedures Act in the following ways: 1) by failing to
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`request a species list from the USFWS and by failing to prepare a biological
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`assessment that included grizzly bears and canada lynx as required by the
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`Endangered Species Act (ESA); 2) by failing to take a hard look at the cumulative
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`effects of the project on the elk population and failing to analyze the efficacy of the
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`proposed mitigation measure as required by the National Forest Management Act
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`(NFMA) and National Environmental Policy Act (NEPA); and 3) by failing to take
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`a hard look at potential impacts to the St. Joe Wild and Scenic River Corridor.
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`LEGAL STANDARD
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`A. Administrative Procedures Act
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`Plaintiffs’ claims are reviewed under the Administrative Procedure Act
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`(“APA”), 5 U.S.C. § 701, et seq. Under the APA, the reviewing court must set
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`aside the agency's decision if it is “arbitrary, capricious, an abuse of discretion, or
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`otherwise not in accordance with law, ... in excess of statutory jurisdiction, ... [or]
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`without observance of procedure required by law.” 5 U.S.C. § 706(2)(A), (C), (D).
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`Such a review is “deferential and narrow, establishing a high threshold for
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`setting aside agency action.” River Runners for Wilderness v. Martin, 593 F.3d
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`1064, 1067 (9th Cir. 2010). A court must not substitute its judgment for that of the
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`agency. Neither should a court just “rubber-stamp” administrative decisions. Ariz.
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`Cattle Growers' Ass'n v. U.S. Fish and Wildlife Servs., 273 F.3d 1229, 1236 (9th
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`Cir. 2001). Instead, the court must presume the agency action to be valid and
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`uphold it if a reasonable basis exists for the action. See Nw. Ecosystem All. v. U.S.
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`Fish and Wildlife Servs., 475 F.3d 1136, 1140 (9th Cir. 2007).
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`B.
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`Preliminary Injunction
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`The party seeking a preliminary injunction must show: (1) a likelihood of
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`success on the merits; (2) a likelihood of irreparable harm in the absence of
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`preliminary relief; (3) that the balance of equities/hardship tips in their favor; and
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`(4) that an injunction is in the public interest. Winter v. Natural Res. Def Council,
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`555 U.S. 7, 20-23 (2008). Since Winter was decided, the Ninth Circuit has held
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`that the “serious questions going to the merits and a balance of hardships that tips
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`sharply towards the plaintiff can support issuance of a preliminary injunction, so
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`long as the plaintiff also shows that there is a likelihood of irreparable injury and
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`that the injunction is in the public interest.” Alliance for the Wild Rockies v.
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`Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011). Even in cases involving endangered
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`species, “there is no presumption of irreparable injury where there has been a
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`procedural violation” of a federal environmental statute. Cottonwood Envtl. Law
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`Ctr. v. U.S. Forest Serv., 789 F.3d 1075, 1091 (9th Cir. 2015). “A plaintiff must
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`show irreparable injury to justify injunctive relief.” Id.
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`ANALYSIS
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`A. Likelihood of Success on the Merits
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`1. Endangered Species Act – Grizzly Bears and Lynx
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`The question presented by Plaintiffs’ claim is whether the ESA requires the
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`action agency to request a list of endangered or threatened species that may be
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`present in the project area, and prepare a biological assessment for any species that
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`may be present, even though the agency has determined that the project will have
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`no effect on the species. Plaintiffs, citing the language of the ESA, 16 U.S.C. §
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`1536, argue that the Forest Service is required to obtain a list of endangered or
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`threatened species from the USFWS for any agency action, and if a species may be
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`present then a biological assessment (BA) must be prepared. Pl’s Br. at 8, Dkt. 7-1.
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`Plaintiffs argue that, by failing to request a list from USFWS and include analysis
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` MEMORANDUM DECISION AND ORDER - 11
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`of impacts to grizzly bears4 or lynx in the BA for the project,5 the Forest Service’s
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`actions were arbitrary and capricious and violated the ESA. Id. Defendants, relying
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`on the regulations implementing the ESA, argue that the Forest Service does not
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`have a duty to request a species list or prepare a BA unless the agency action is a
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`“major construction activity.” 6 Def.’s Resp. at 5, Dkt. 24. Defendants argue that
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`consultation requirements are only triggered when the action agency determines
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`that an action “may affect” a listed species, and because the Forest Service
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`determined that the project would have “no effect” on grizzly bears or lynx it had
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`no duty to consult with the USFWS.
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`The ESA provides that:
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`Each Federal agency shall, in consultation with and with the
`assistance of the Secretary [of Interior], insure that any action
`authorized, funded, or carried out by such agency ([hereinafter]
`“agency action”) is not likely to jeopardize the continued existence of
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`
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`4 There is some dispute whether grizzly bears may be present in the project area. Dkt. 24
`at 17. However, the Forest Service took the effort to analyze grizzly bears in its wildlife report
`and determined that the project would have “no effect” on bears.
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`5 Plaintiffs make distinct claims to each grizzly bears and lynx. However, because the
`Court agrees with Plaintiffs that a BA is required for any listed species that may be present in the
`project area, and the Forest Service did not prepare a BA for either species, the analysis for both
`species is the same.
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`6 Major construction activity is defined as “a construction project (or other undertaking
`having similar physical impacts) which is a major Federal action significantly affecting the
`quality of the human environment as referred to in the National Environmental Policy Act
`[NEPA, 42 U.S.C. 4332(2)(C)].” 50 C.F.R. § 402.02.
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`any endangered species or threatened species or result in the
`destruction or adverse modification of [critical] habitat of such species
`…. In fulfilling the requirements of this paragraph each agency shall
`use the best scientific and commercial data available.
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`16 U.S.C. § 1536(a)(2).
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`To facilitate compliance with the requirements of subsection (a)(2),
`each Federal agency shall, with respect to any agency action of such
`agency . . . request of the Secretary information whether any species
`which is listed or proposed to be listed may be present in the area of
`such proposed action. If the Secretary advises, based on the best
`scientific and commercial data available, that such species may be
`present, such agency shall conduct a biological assessment for the
`purpose of identifying any endangered species or threatened species
`which is likely to be affected by such action. Such assessment shall be
`completed within 180 days after the date on which initiated … and,
`before any contract for construction is entered into and before
`construction is begun with respect to such action. Such assessment
`may be undertaken as part of a Federal agency's compliance with the
`requirements of section 102 of the National Environmental Policy Act
`of 1969
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`Id. § 1536(c)(1).
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`The regulations implementing the above sections of the ESA were
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`promulgated by the USFWS and National Marine Fisheries Service in 1986. 51
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`Fed. Reg. 19926 (June 3, 1986); 50 C.F.R. Part 402. Under the regulations the
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`action agency is only required to consult with the USFWS if it first determines that
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`the action “may affect” a listed species. Thus, under the regulations, if an agency
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`determines that its action will have “no effect” on a listed species it does not need
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`to consult. See San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581,
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`596–97 (9th Cir. 2014).
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`The Services interpreted § 1536(a)(2) as requiring “formal consultation” if
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`the action agency determines that its action “may affect” any listed species, unless
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`the action agency determines that the action “is not likely to adversely affect” such
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`species through informal consultation, or the preparation of a biological
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`assessment, and received concurrence of the USFWS.7 51 Fed. Reg. 19941; 50
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`C.F.R. § 402.14.8 “Informal consultation” is an optional process to help the action
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`agency determine whether formal consultation is required. 50 C.F.R. § 402.13.
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`Under the regulations a biological assessment is only required for “major
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`construction activities,” however the action agency may choose to prepare a
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`7 The “may affect” threshold was originally adopted by the Services in the 1978
`regulations implementing the Endangered Species Act of 1973. 43 Fed. Reg. 870, 874 (Jan. 4,
`1978).
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`8 50 C.F.R § 402.14 provides:
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`(a) Requirement for formal consultation. Each Federal agency shall review its actions at
`the earliest possible time to determine whether any action may affect listed species or
`critical habitat. If such a determination is made, formal consultation is required,
`except as noted in paragraph (b) of this section….
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`(b) Exceptions.
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`(1) A Federal agency need not initiate formal consultation if, as a result of the
`preparation of a biological assessment under § 402.12 or as a result of informal
`consultation with the Service under § 402.13, the Federal agency determines, with
`the written concurrence of the Director, that the proposed action is not likely to
`adversely affect any listed species or critical habitat.
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`biological assessment to assist with its determination in any action. 50 C.F.R. §
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`402.12.
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`The Services, relying on the Conference Report to the 1978 ESA
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`amendments, determined that the provisions of § 1536(c)(1), requiring the
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`preparation of biological assessments, should only be mandatory for “major
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`construction activities.” 51 Fed. Reg. 19936 (“The legislative history of section
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`7(c) of the Act plainly focused the mandatory duty to prepare biological
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`assessments on ‘major Federal actions . . . designed primarily to result in the
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`building or erection of dams, buildings, pipelines and the like.’” (quoting H.R.
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`Conf. Rep. 96-697, 13, 1979 U.S.C.C.A.N. 2572, 2577)). Under the regulations,
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`the action agency must first determine whether an action is a major construction
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`activity. 50 C.F.R. § 402.12. If the agency so determines, it must request a list of
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`species that may be present in the action area from the USFWS. Id. The agency
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`must prepare a BA for any listed species that may be present. Id. If the action is not
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`a major construction activity then, under the regulations, the agency is not required
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`to request a species list nor prepare a biological assessment. Nowhere do the
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`regulations limit the ability of an agency to prepare a BA.
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`The issue here is whether the plain language of § 1536(c)(1) requires the
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`preparation of a BA for any agency action where a listed species may be present,
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` MEMORANDUM DECISION AND ORDER - 15
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`even though the regulations only require a BA for major construction activities.
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`The Ninth Circuit has not directly decided this issue. Swan View Coal. v. Weber,
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`783 F. App'x 675, 678 n.1 (9th Cir. 2019).
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`In a case decided before the regulations were promulgated, the Ninth Circuit
`
`described the requirements of the ESA as follows:
`
`The Act prescribes a three-step process to ensure compliance with its
`substantive provisions by federal agencies. Each of the first two steps
`serves a screening function to determine if the successive steps are
`required. The steps are:
`(1) An agency proposing to take an action must inquire of the
`[USFWS] whether any threatened or endangered species
`“may be present” in the area of the proposed action. See 16
`U.S.C. § 1536(c)(1).
`(2) If the answer is affirmative, the agency must prepare a
`“biological assessment” to determine whether such species
`“is likely to be affected” by the action. Id. The biological
`assessment may be part of an environmental impact
`statement or environmental assessment. Id.
`(3) If the assessment determines that a threatened or endangered
`species “is likely to be affected,” the agency must formally
`consult with the USFWS. Id. § 1536(a)(2).
`
`Thomas v. Peterson, 753 F.2d 754, 763 (9th Cir. 1985). The Ninth Circuit went on
`
`to state that
`
`[o]nce an agency is aware that an endangered species may be present
`in the area of its proposed action, the ESA requires it to prepare a
`biological assessment to determine whether the proposed action “is
`likely to affect” the species and therefore requires formal consultation
`with the [USFWS]…. Without a biological assessment, it cannot be
`determined whether the proposed project will result in a violation of
`the ESA’s substantive provisions.
`
`
`
` MEMORANDUM DECISION AND ORDER - 16
`
`
`
`Case 2:20-cv-00243-BLW Document 28 Filed 07/13/20 Page 17 of 35
`
`
`
`Id. In Thomas, the Ninth Circuit was considering whether the Forest Service
`
`violated the ESA by failing to request a species list from USFWS and prepare a
`
`BA for the grey wolf, which the Forest Service recognized, may be present in the
`
`area of planned forest road.
`
`
`
`Since Thomas, and the promulgation of the regulations, the bulk of Ninth
`
`Circuit authority describes the ESA as requiring consultation only when the action
`
`agency has determined that its action “may affect” a listed species. Sw. Ctr. for
`
`Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443, 1447–48 (9th Cir.1996).9
`
`Defendants rely on this line of caselaw to argue that, because the Forest Service
`
`has discretion to determine whether its action may affect a listed species in the first
`
`place, before initiating consultation, and because the requirements of § 1536(c)(1)
`
`are designed to facilitate compliance with the consultation requirement of §
`
`1536(a)(2), it does not need to consult, or prepare a BA, if it determines the action
`
`will have no effect. Dkt. 24 at 6.
`
`
`
`The issue here, however, is not whether the Forest Service needs to initiate
`
`
`
`9 See also San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 596 (9th Cir.
`2014); Karuk Tribe of California v. U.S. Forest Serv., 681 F.3d 1006, 1027 (9th Cir. 2012);
`California ex rel. Lockyer v. U.S. Dep't of Agric., 575 F.3d 999, 1019 (9th Cir. 2009); Defs. of
`Wildlife v. Flowers, 414 F.3d 1066, 1069–70 (9th Cir. 2005); Pacific Rivers Council v. Thomas,
`30 F.3d 1050, 1054 n.8 (9th Cir.1994).
`
`
`
` MEMORANDUM DECISION AND ORDER - 17
`
`
`
`Case 2:20-cv-00243-BLW Document 28 Filed 07/13/20 Page 18 of 35
`
`
`
`consultation, but instead whether it needs to follow the requirements of §
`
`1536(c)(1)—requesting a species list and preparing a BA for species that may be
`
`present—to determine if the action may affect a listed species in the first place.
`
`Two Ninth Circuit cases rely on Thomas to suggest a biological assessment is
`
`required for any agency action where a listed species may be present. Forest
`
`Guardians v. Johanns, 450 F.3d 455, 457 (9th Cir. 2006); City of Sausalito v.
`
`O'Neill, 386 F.3d 1186, 1215–16 (9th Cir. 2004). Ultimately the issue here was not
`
`directly at issue in any of the Ninth Circuit cases cited by either party.
`
`
`
`This Court is aware of three district court cases within the Ninth Circuit
`
`addressing the issue presented here. In two of the cases the courts rejected the
`
`agencies’ arguments that, because the agency action was not a major construction
`
`activity, they were not required to request a species list or prepare a BA. Native
`
`Ecosystems Council v. Marten, 2020 WL 1479059, at *4 (D. Mont. Mar. 26,
`
`2020); Ctr. for Food Safety v. Johanns, 2006 WL 2927121, at *1 (D. Haw. Oct. 11,
`
`2006).10 In W. Watersheds Project v. Bureau of Land Mgmt., 552 F. Supp. 2d 1113,
`
`1139–40 (D. Nev. 2008), the court agreed with the agencies that § 1536(c)(1) only
`
`
`
`10 In Center for Food Safety the court was focused on whether the agency needed to
`request a species list under § 1536(c)(1). Because the agency had not requested a species list to
`determine which species may be present the court did not determine whether a BA was also
`required. However, the court’s analysis is informative in this case.
`
`
`
` MEMORANDUM DECISION AND ORDER - 18
`
`
`
`Case 2:20-cv-00243-BLW Document 28 Filed 07/13/20 Page 19 of 35
`
`
`
`requires a BA if the agency action is a major construction activity.11
`
`
`
`In Marten the court rejected many of the same arguments Defendants make
`
`here. There the court found that Congress had clearly spoken on the issue through
`
`§ 1536(c)(1) and the agency’s interpretation was not entitled to Chevron deference.
`
`Marten, 2020 WL 1479059 at *5. The court found that the plain language of §
`
`1536(c)(1) required a BA for any agency action where a listed species may be
`
`present. Id. The court also rejected the defendants’ argument that the references to
`
`contracts for construction in § 1536(c)(1) meant the section only applied to “major
`
`construction activities” and rejected defendants’ reliance on the legislative history.
`
`Id. Finally, the court held that adopting defendants’ reading would be structurally
`
`inconsistent with the purpose of the ESA. Id. at 6. This Court agrees with the
`
`analysis of Marten.
`
`
`
`First, § 1536(c)(1) provides that its requirements are “[t]o facilitate
`
`compliance with the requirements of subsection (a)(2).” Defendants argue that the
`
`
`
`11 In Western Watersheds the court relied on First and Eighth Circuit cases it described as
`not requiring a biological assessment unless the agency action was a major construction activity.
`In the First Circuit case the court didn’t reach the issue of whether a BA was required because it
`determined that, even if it was, the Navy had included the contents of a BA in its consultation
`package. Water Keeper All. v. U.S. Dep't of Def., 271 F.3d 21, 33 (1st Cir. 2001). In the Eighth
`Circuit case the court, relying on the regulations, stated that a BA is only required for major
`construction activities, but it found that the Forest Service had adequately determined the agency
`action would have no effect on listed species through a detailed biological evaluation. Newton
`Cty. Wildlife Ass'n v. Rogers, 141 F.3d 803, 810 (8th Cir. 1998).
`
`
`
` MEMORANDUM DECISION AND ORDER - 19
`
`
`
`Case 2:20-cv-00243-BLW Document 28 Filed 07/13/20 Page 20 of 35
`
`
`
`Court must give meaning to this section in its interpretation of subsection (c)(1).
`
`Dkt. 24 at 6. Defendants essentially argue because subsection (a)(2) does not apply
`
`when there has been a “no effect” determination, subsection (c)(1) should also not
`
`apply. The “may affect”/“no effect” distinction was created by the Services
`
`through the regulations regarding consultation. The plain language of the statute
`
`contains no such limitation. Further, it is entirely consistent with the language of
`
`the statute to conclude that the requirements of subsection (c)(1) are designed as a
`
`precursor to assist in the determination that an agency action may have an effect on
`
`a listed species. See, e.g., Thomas, 753 F.2d at 763; Nat'l Wildlife Fed'n v. Fed.
`
`Emergency Mgmt. Agency, 345 F. Supp. 2d 1151, 1175 (W.D. Wash. 2004)
`
`(holding that FEMA was required to document its “no effect” determination).
`
`
`
`Second, subsection (c)(1) does not limit the applicability of its requirements
`
`in any way; by its
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