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Gifford Pinchot Task Force v. U.S. Fish & Wildlife Serv.

ELR Citation: 34 ELR 20068
Nos. No. 03-35279, (9th Cir., 08/06/2004)

The Ninth Circuit reversed a lower court decision to find that biological opinions issued by the U.S. Fish and Wildlife Service (FWS) on timber harvests and critical habitat for the northern spotted owl improperly relied on an unlawful regulatory definition of "adverse modification" and impermissibly substituted late successional reserves (LSRs) for critical habitat. The agency’s finding that loss of critical habitat was not an "adverse modification" because of the existence of suitable external habitat is arbitrary and capricious and is contrary to law. The agency's interpretation of adverse modification would require appreciable diminishment of critical habitat necessary for survival before the adverse modification standard could ever be met. In addition, suitable alternative habitat, here LSRs, is no substitute for designated critical habitat. Simply because the spotted owl has suitable alternative habitat in the form of non-critical habitat, LSRs has no bearing on whether there is adverse modification of critical habitat. This interpretation would thwart the goals of the Endangered Species Act, which aims to create critical habitat necessary for species' survival as well as recovery. The FWS' reliance on the Northwest Forest Plan for its jeopardy analysis under ESA §7, however, was proper without more evidence showing that the plan was inadequate or incorrect.