The Ninth Circuit Grows Weary of NSO Litigation

A new 9th Circuit opinion shows the court has grown weary of the Spotted Owl wars.

[Guest post by Sarah Whittington]

A new opinion from the Ninth Circuit shows little regard for the allegations of an environmental group and a lot of deference to the agency’s judgment.  Conservation Congress brought suit against the U.S. Forest Service (USFS) and the U.S. Fish and Wildlife Service (FWS) claiming they violated both the Endangered Species Act and NEPA. Conservation Congress’s NEPA claim centered on the merits of USFS’s EIS analyzing a logging project and its probable impacts on the habitat and food sources for the Northern spotted owl (listed as threatened under the ESA).

The court affirmed the lower court’s summary judgment against Conservation Congress’s NEPA claims. See Conservation Congress v. Finley, 774 F.3d 611, 621 (9th Cir. 2014).  It reasoned that the review of an EIS should be done with an abuse of discretion standard and that, because the agency had taken the requisite “hard look,” the courts shouldn’t overturn the agency’s judgment.

USFS’s EIS considered the short-term effect of the logging project (called a “thinning and fuel reduction” project) on the Northern spotted owls’ habitat and food sources and the impact of the invasive Barred owl in the area that could be augmented by the project. Even with little record evidence to support its judgment that the risks to the NSO were low, the court found the agency’s analysis and explanation sufficient. It is hard not to conclude that the court’s deference stemmed at least in part from a weariness of all things NSO.  In another time or place, one could imagine the USFS’s scant evidence for its EIS findings that the thinning project won’t adversely impact the Owl’s habitat or survival prospects failing in the face of the Ninth Circuit’s arbitrariness review.  But not this time around.

 

{Image: Northern spotted owl}

 

I teach environmental, natural resources, and administrative law at Penn State Law. Before teaching I was an enforcement lawyer at U.S. EPA. Along the way I've done work for environmental nonprofits and written a fair bit about NEPA.
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