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Environmental Info. Protection Ctr. v. U.S. Fish & Wildlife Serv.

Citation: 35 ELR 20233
No. No. C 04-04647 CRB, (N.D. Cal., 11/10/2005)

A court dismisses an environmental group's Endangered Species Act (ESA) and National Environmental Policy Act claims against the U.S. Fish and Wildlife Service and National Oceanic and Atmospheric Administration Fisheries concerning logging activity on private lands in Humboldt County, California, and denied their motion to preliminarily enjoin a lumber company's logging activities at the site. The group argued that the agencies must issue a supplemental environmental impact statement (SEIS) for the project, but the group's complaint does not allege any proposed or ongoing "major federal activity" that would trigger such a duty. The major federal actions that required the SEIS in the first place were the adoption of the habitat conservation plan (HCP) and issuance of the incidental take permit (ITP), and those actions are complete. The agencies' "adaptive management" under the HCP and ITP does not constitute a major federal action, and although the 2005 biological opinion acknowledged an increased amount of marbled murrelet habitat in the area, this change does not alter the agencies' responsibilities or create a new standard dictating when the agencies must act. The groups also argued that the agencies should revoke the ITP issued to a lumber company on the ground that it violated the HCP. But a "finding" of noncompliance under ESA §10 is within the agencies' discretion and not reviewable by the court. Last, the group failed to demonstrate a likelihood of success on the merits of their claim that the "no jeopardy" finding for the marbled murrelet was arbitrary and capricious. The group's motion to preliminarily enjoin logging activities at the site was therefore denied.