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Klamath-Siskiyou Wildlands Center v. National Oceanic & Atmospheric Administration

ELR Citation: 45 ELR 20073
Nos. 13-cv-03717, (N.D. Cal., 04/03/2015) (Cousins, M.J.)

A district court held that FWS and the National Marine Fisheries Service (NMFS) violated the ESA and NEPA when they issued 50-year incidental take permits to a farm to take the northern spotted owl and the Southern Oregon/Northern California Coast coho salmon, both of which are "threatened" species. An environmental group challenged the permits, primarily arguing that the farm wrongfully obtained an incidental take permit by piggybacking off of the U.S. Forest Service's conservation efforts on neighboring lands. The court agreed. By relying on the minimization and mitigation efforts by the U.S. Forest Service, an entity other than the applicant, FWS improperly found that the farm satisfied the “minimize and mitigate” requirement in ESA §10(a)(2)(B)(ii) with respect to the northern spotted owl. Consequently, the decision to issue the incidental take permit was arbitrary and capricious. Applicant landowners seeking to perform actions that would lead to a take should not be permitted to obtain incidental take permits by piggybacking off of existing conservation efforts by their non-applicant neighbors. The court also invalidated NMFS' incidental take permit for the coho salmon. NMFS failed to analyze the short-term impacts on threatened coho salmon of the farm's plan to harvest timber, even though NMFS' biological opinion recognized that coho salmon have only a three-year life cycle. NMFS also violated the ESA's no-jeopardy and mitigation requirements. And both agencies violated NEPA by failing to analyze the cumulative effects of timber harvests, herbicide use, and water withdrawals in the final EIS. The court therefore invalided both incidental take statements, NMFS' biological opinion, and the EIS. FWS' biological opinion for the spotted owl, however, remains valid because the agency's no-jeopardy conclusions were not arbitrary and capricious.