Victory on Mudflow Project

By: Scott Horngren

This week our industry received a significant victory regarding management in spotted owl habitat when Judge Karlton of the Eastern District of California denied a motion for preliminary injunction in Conservation Congress v. Forest Service for the Mudflow Vegetation Management Project on the Shasta-Trinity National Forest. The project involved thinning, some of which occurs in spotted owl critical habitat and excluded all nesting, roosting, foraging habitat from harvest, but the Forest Service and FWS concluded the thinning would “degrade” owl foraging habitat. The agencies did not engage in formal consultation because they determined there would be no adverse effects on the spotted owl or adverse modification of critical habitat. Plaintiffs claimed that these conclusions violated the Endangered Species Act.

The ruling is significant in several important areas. First, the court held that complete removal of critical habitat is not necessarily adverse modification or destruction under the ESA. The project contained multiple landings that would result in harvest of all the trees completely eliminating the habitat on those landings. Relying on a favorable Ninth Circuit decision that held “[a]n area of a species’ critical habitat can be destroyed without appreciably diminishing the value of a critical habitat for the species’ survival or recovery,” the court held that that the landing construction was not adverse modification.

Second, the court held that habitat “degradation” from thinning did not mean that there was an adverse effect on the owl or adverse modification of critical habitat requiring ESA formal consultation between the Forest Service and FWS. The court explained:

Plaintiff’s argument hangs upon “its conflation of the technical and colloquial meanings of the word ‘degrade.’ In essence, Plaintiff argues that, according to the USFS and the FWS, ‘degradations’ will occur to the critical habitat, and that ‘a large amount of degradation from
repetitive timber sale projects, even if designed to benefit the Owl over the long-term, simply must have some short-term impacts to the Owl and are likely impeding its recovery.’ Although Plaintiff’s argument appears facially valid, the argument loses its force in a regulatory world in which words are not given their plain meanings. According to the Biological Assessment, ‘degraded’ is defined as ‘a reduction in some habitat components,’ without a loss of ‘function at the current habitat level.’ . . . In light of a definition of “degrade” that could mean “beneficial to habitat function,” and absent further proof to the contrary, the court is unable to agree with Plaintiff that a series of “degradations” will
necessarily have an adverse effect upon the Northern Spotted Owl critical habitat.

Third, the court concluded that the Forest Service adequately addressed the short-term effect of thinning on spotted owl prey. The Forest Service did so through excluding harvest of nesting roosting and high quality foraging habitat within spotted owl core areas, by retaining the function of foraging habitat in the areas being thinned and by imposing a seasonal restriction on timber harvest during the breeding season.
Finally, the court upheld the analysis of the effects of thinning on the spotted owl and barred owl interaction. Although the original biological assessment did not address the barred owl, the court held that FWS's second letter of concurrence acknowledged the possibility of barred owls displacing spotted owls and did not minimize the threat of barred owls in its analysis. Significantly, the court held that under the regulations, the content of a biological assessment is discretionary and there are no strict requirements for what a biological assessment must include.

Congratulations to Sierra Pacific Industries and their attorney Julie Weis of Haglund, Kelley, Jones & Wilder on this important victory.