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Oregon Natural Resources Council v. Allen

ELR Citation: 37 ELR 20048
Nos. No. 05-35830, (9th Cir., 02/16/2007)

The court held that a U.S. Fish and Wildlife Service (FWS) incidental take statement authorizing the taking of all northern spotted owls associated with certain proposed timber harvests in the Pacific Northwest is invalid. As a result of a prior court opinion, the FWS voluntarily reinitiated consultation with two federal agencies regarding the impact of a portion of the proposed timber harvests on the endangered northern spotted owl. The FWS then withdrew its biological opinion (BO) regarding that portion, but it did not withdraw the accompanying incidental take statement. By withdrawing a portion of the BO, the incidental take statement was left without an underlying factual predicate. In addition, the incidental take statement presents a nonnumerical measure of take without explaining why no number was provided, and it sets a measure of take that does not allow for reinitiation of consultation. On remand, the district court must grant summary judgment in favor of plaintiffs regarding the invalidity of the incidental take statement.