Klamath-Siskiyou Wildlands Center v. Bureau of Land Management

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KLAMATH-SISKIYOU WILDLANDS
CENTER, et al.,
Plaintiffs-Appellants,
v.
BUREAU OF LAND MANAGEMENT, et
al.,
Defendants-Appellees,
and
MURPHY COMPANY,
Intervenor-Defendant-Appellee.
No. 22-35035
D.C. No. 1:19-cv-01810-CL
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Michael J. McShane, District Judge, Presiding
Argued and Submitted November 10, 2022
Portland, Oregon
Before: CLIFTON and H.A. THOMAS, Circuit Judges, and BAKER,**
International Trade Judge.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable M. Miller Baker, Judge for the United States Court of
International Trade, sitting by designation.
FILED
NOV 25 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Plaintiffs-Appellants Klamath-Siskiyou Wildlands Center, et al.,
(collectively “KS Wild”) appeal from the district court’s grant of summary
judgment in favor of Defendants-Appellees, comprising of the United States
Bureau of Land Management (“BLM”) and United States Fish and Wildlife
Service (“FWS”), et al. In 2018, BLM developed the North Landscape Project
(“North Project”), a site-specific management approach for conducting annual
timber sales in the Klamath Falls Resource Area in accordance with the 2016
Southwestern Oregon Resource Management Plan (“2016 RMP”) and Oregon &
California Revested Lands Act. That same year, FWS issued a Biological Opinion
(“BiOp”) concluding that the North Project will not jeopardize the Northern
Spotted Owl (“NSO”) as a species, adversely modify its critical habitat, nor result
in its incidental take. BLM concurrently conducted an Environmental Assessment
(“EA”) for the North Project, which concluded that the action would have no direct
effect on the NSO population and is consistent with the owl’s recovery as a
species. The EA was revised in 2020 with additional information and retained that
conclusion.
KS Wild alleges that the BiOp violated the Endangered Species Act
(“ESA”), see 16 U.S.C. § 1536(a)(2), and the EA violated the National
Environmental Policy Act (“NEPA”), see 42 U.S.C. § 4332(C). We have
jurisdiction under 28 U.S.C. § 1291. We review de novo the district court's ruling

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on cross-motions for summary judgment. Hamby v. Hammond, 821 F.3d 1085,
1090 (9th Cir. 2016). The agency’s compliance with the law is reviewed under the
Administrative Procedure Act’s deferential “arbitrary and capricious” standard. 5
U.S.C. § 706(2)(A); Friends of Animals v. U.S. Fish & Wildlife Serv., 28 F.4th 19,
28 (9th Cir. 2022). This standard requires us to “determine whether the agency
considered the relevant factors and articulated a rational connection between the
facts found and the choices made.” Friends of Animals, 28 F.4th at 28 (quoting
Ranchers Cattlemen Action Legal Fund United Stockgrowers of Am. v. U.S. Dep’t
of Agric., 499 F.3d 1108, 1115 (9th Cir. 2007)). We affirm.
1. Endangered Species Act
The district court correctly held that the BiOp was not arbitrary and
capricious under the ESA. See 16 U.S.C. § 1536(a)(2), (b). The BiOp analyzed the
North Project’s impact on NSO critical habitat and conservation, which
incorporates recovery of the species and is distinct from its mere survival. See id.
§ 1536(a)(2); Defs. of Wildlife v. Zinke, 856 F.3d 1248, 1260 (9th Cir. 2017);
Definition of Destruction or Adverse Modification of Critical Habitat, 81 Fed. Reg.
7214, 7216–17 (Feb. 11, 2016). For example, the BiOp examined the status of
NSO critical habitat, the environmental baseline of the action area, the direct and
indirect effects of the action, and the future cumulative effects of the action. It
found that the North Project will affect only a small portion of the NSO’s critical

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habitat in the Klamath Falls Resource Area and “less than 0.1 percent” of the
NSO’s total habitat. The BiOp further considered the North Project’s effects on the
life cycle of the NSO by noting the owl’s long lifespan, extensive range, and varied
breeding ground. Contrary to KS Wild’s contention, the NSO is therefore
distinguishable from anadromous fish whose breeding and migration cycles require
an assessment of near-term habitat loss. See, e.g., Pac. Coast Fed’n of Fishermen’s
Ass’ns, Inc. v. Nat’l Marine Fisheries Serv., 265 F.3d 1028, 1037–38 (9th Cir.
2001); Pac. Coast Fed’n of Fishermen’s Ass’ns v. U.S. Bureau of Reclamation,
426 F.3d 1082, 1093 (9th Cir. 2005).
We also defer to FWS’s scientific judgment and the validity of its survey
protocol in upholding the agency’s determination of no incidental take. See San
Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 626 (9th Cir. 2014).
KS Wild has not shown that determination was arbitrary and capricious. Although
the North Project may preclude reoccupancy of NSOs in the action area for a
prolonged period, habitat degradation from adverse effects does not always “equal
harm” sufficient to constitute incidental taking. See Ariz. Cattle Growers’ Ass’n v.
U.S. Fish & Wildlife Serv., 273 F.3d 1229, 1238 (9th Cir. 2001). Nor has KS Wild
shown that the survey protocol improperly deviates from past policy and practice
and the best available science. An individual biologist’s “preliminary
determination” that the survey protocol departs from prior procedure (which is

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“later overruled at a higher level within the agency”) does not make the decision-
making process arbitrary and capricious. See Nat’l Ass’n of Home Builders v. Defs.
of Wildlife, 551 U.S. 644, 659 (2007). Similarly, internal agency emails that
discuss Allowable Sale Quantity targets do not demonstrate that BLM or FWS, in
their official capacity, unlawfully focused on economic factors in considering the
North Project. See Nat’l Wildlife Fed’n v. U.S. Army Corps of Eng’rs, 384 F.3d
1163, 1174–75 (9th Cir. 2004).
2. National Environmental Policy Act
The district court correctly determined that BLM took a “hard look” at the
environmental consequences of the North Project using the process provided by
NEPA. See Audubon Soc’y of Portland v. Haaland, 40 F.4th 967, 980 (9th Cir.
2022) (quoting N. Alaska Env’t Ctr. v. Kempthorne, 457 F.3d 969, 975 (9th Cir.
2006)). First, the EA was not legally deficient when it tiered to the final
environmental impact statement (“FEIS”) of the 2016 RMP. The FEIS contains
project-level analysis—such as potential loss of NSO habitat within the action area
and reduced future NSO occupancy. See All. for the Wild Rockies v. U.S. Forest
Serv., 907 F.3d 1105, 1120–21 (9th Cir. 2018). In the revised EA, BLM relied on
this analysis and separately evaluated new owl demographic data for the action
area that post-date the 2016 RMP and contemplate additional owl habitat.
Additionally, the EA assessed the North Project’s indirect, direct, and cumulative

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effects on the NSO—including NSO habitat refugia and barred owl competition—
by tiering to the 2016 FEIS and conducting independent site-specific analysis. The
EA was not required to assess the experimental barred owl control program
because the program’s success was hypothetical and reliant upon data collection
efforts that had not yet materialized. See Jones v. Nat’l Marine Fisheries Serv., 741
F.3d 989, 1000 (9th Cir. 2013).
Second, BLM’s decision to prepare an EA instead of an Environmental
Impact Statement for the North Project was not arbitrary or capricious. See Env’t
Def. Ctr. v. Bureau of Ocean Energy Mgmt., 36 F.4th 850, 872 (9th Cir. 2022). For
reasons already stated, KS Wild did not show the North Project is highly
controversial or uncertain, establishes binding precedent, or adversely affects the
NSO. See WildEarth Guardians v. Provencio, 923 F.3d 655, 673–74 (9th Cir.
2019). Indeed, this court has previously upheld the 2016 RMP against ESA and
NEPA complaints. Rivers v. Bureau of Land Mgmt., 815 F. App’x 107, 110 (9th
Cir. 2020) (unpublished). To the extent the North Project is precedential, this factor
alone is “not dispositive,” and there is no evidence the North Project is binding on
future proposed actions. See WildEarth Guardians, 923 F.3d at 674–75.
AFFIRMED.

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