Citations
- 99 F. Supp. 3d 1033
Full opinion text
ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
Re: Dkt. Nos. 53, 63, 66
NATHANAEL M. COUSINS, United States Magistrate Judge
The Endangered Species Act makes it unlawful for any person to “take” members of an endangered or threatened species. There is an exception: a person may obtain a permit to take a species, if such taking is incidental to the proposed activity and the applicant presents plans to minimize and mitigate its impact. Here, the primary issue is whether or not a permit applicant should be allowed to piggyback off of the conservation work of a non-applicant neighbor.
Plaintiffs Klamath-Siskiyou Wildlands Center, Center for Biological Diversity, and Klamath Forest Alliance (collectively “KS Wild”) allege that defendants U.S. Fish and Wildlife Service and National Marine Fisheries Service (collectively “the Services”) improperly issued 50-year incidental take permits to defendant-interve-nor Fruit Growers Supply Company to take two “threatened” species: the northern spotted owl and the Southern Oregon/Northern California Coast coho salmon. KS Wild alleges multiple violations of the Endangered Species Act and the National Environmental Policy Act.
KS Wild’s key allegation is that Fruit Growers wrongfully obtained an incidental take permit by piggybacking off of the U.S. Forest Service’s conservation efforts on neighboring lands.
In discussing the ESA issues, the Court first tackles KS Wild’s claims associated with the northern spotted owl. Those claims involve the issue of whether or not the U.S. Fish and Wildlife Service arbitrarily and capriciously issued an incidental take permit to Fruit Growers. The Court also discusses whether FWS erred in issuing a biological opinion that found Fruit Growers’ plan to harvest timber would not likely jeopardize the northern spotted owl’s continued existence or result in the destruction or adverse modification of critical habitat.
Next, the Court looks at the ESA claims concerning the Southern Oregon/Northern California Coast coho salmon (“coho salmon”). KS Wild argues that the National Marine Fisheries Service made an arbitrary and capricious finding in its biological opinion that Fruit Growers’ proposed timber-harvesting activities would not jeopardize the continued existence of coho salmon. In particular, KS Wild argues that the Services failed to account for the coho salmon’s short three-year lifespan in its “no jeopardy” analysis. KS Wild also argues that NMFS’s finding that Fruit Growers satisfied the “minimize and mitigate” requirement under § 10 was arbitrary and capricious.
Finally, the Court examines KS Wild’s claims that the Services violated the National Environmental Policy Act. Under NEPA, the reviewing agency must issue an “environmental impact statement” that measures the cumulative effects of the environmental action. The Court examines the question of whether the Services’ joint Final Environmental Impact Statement conducted a sufficient cumulative effects analysis of Fruit Growers’ proposed actions — its timber harvest projects, its plan to use herbicides, and its plan to perform water withdrawal projects. The Court then looks at KS Wild’s contention that Fruit Growers violated NEPA by-failing to release certain economic data about Fruit Growers, and by failing to quantify its findings as to the environmental consequences of Fruit Growers’ proposed action.
For- the reasons explained below, the Court GRANTS KS Wild’s summary judgment motion and finds the incidental take permits issued by the Services, the biological opinion issued by NMFS, and the Final Environmental Impact Statement invalid. But the Court DENIES KS Wild’s summary judgment motion to invalidate the FWS biological opinion. Accordingly, the Services’ cross-motion for summary judgment is DENIED as to all issues except the claim involving the FWS biological opinion’s validity. As to that claim, the Services’ cross-motion is GRANTED.
TABLE OF CONTENTS
I. BACKGROUND
A. Statutory Framework
1. Endangered Species Act
2. National Environmental Policy Act
B. The Threatened Species
1. Northern Spotted Owl
2. Southern Oregon/Northern California Coast Coho Salmon
C. The Incidental Take Permits and the Supporting Documents
1. Habitat Conservation Plan
2. Environmental Impact Statement
3. Biological Opinion
D. The Dispute
II. JURISDICTION
III. STANDARD OF REVIEW
IV. DISCUSSION
A. Endangered Species Act
1. Northern Spotted Owl
a. Incidental Take Permit
i. .FWS’s “Minimize and Mitigate” Finding for “the Applicant”
ii. Fruit Growers’ Unenforceable Commitments
b. Biological Opinion
i. FWS’s “No Jeopardy” Findings
ii. FWS’s Inconsistent Assumptions
2. Coho Salmon
a. Incidental Take Permit and Biological Opinion
i. NMFS’s Failure to Evaluate Short-Term Impacts
ii. NMFS’s “Minimize and Mitigate” Finding
B. National Environmental Policy Act
1. Cumulative Effects Analysis in Environmental Impact Statement
a. Timber Harvests
b. Herbicides
c. Water Withdrawal
2. Other NEPA Issues
a. Economic Data
b. Quantification of Environmental Consequences
V. CONCLUSION
A. Summary of Findings
1. Endangered Species Act Claims: Northern Spotted Owl
2. Endangered Species Act Claims: Coho Salmon
3. National Environmental Policy Act Claims
B. Additional Briefing
1. Remedy
2. Claim Three
3. Briefing and Hearing Schedule Attachments
• Exhibit 1: Owl Circle “SK378” from Habitat Conservation Plan (AR 36417)
• Exhibit 2: Owl Circle “SK238” from Habitat Conservation Plan (AR 36412)
1. BACKGROUND
A. Statutory Framework
1. Endangered Species Act
Congress enacted the Endangered Species Act of 1973, 16 U.S.C. §§ 1531-1544, “to halt and reverse the trend toward species extinction, whatever the cost.” Term. Valley Auth. v. Hill, 437 U.S. 153, 184, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978). In accordance with this policy, the ESA directs the Secretary of the Interior or the Secretary of Commerce to list endangered and threatened species. ESA § 4(a), 16 U,S.C. § 1533(a). Section 9 of the ESA makes it unlawful for any person to “take” a species that has been listed. ESA §§ 9(a)(1)(B) and (G), 16 U.S.C. §§ 1538(a)(1)(B) and (G).
Defined broadly, “take” means “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” ESA § 3(19), 16 U.S.C..§ 1532(19); see Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or., 515 U.S. 687, 704, 115 S.Ct. 2407, 132 L.Ed.2d 597 (1995) (“Congress intended ‘take’ to apply broadly to cover indirect as well as purposeful actions.”). The regulations further define the term “harass” as an “intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding, or sheltering.” 50 C.F.R. § 17.3. The regulations define “harm” as “an act which actually kills or injures wildlife. Such act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering.” Id.
There is an exception to the ESA’s § 9 prohibition on taking. Section 10 of the ESA gives wildlife Services the discretion to issue a permit that allows a private individual to take a species, “if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity.” ESA § 10(a)(1)(B), 16 U.S.C. § 1539(a)(1)(B).
Before the Services can issue this “incidental take permit,” the permit applicant must submit a “Habitat Conservation Plan.” This Plan must show that “the applicant will, to the maximum extent practicable, minimize and mitigate the impacts of the taking,” and that “the taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild.” ESA § 10(a)(2), 16 U.S.C. § 1539(a)(2). The Secretary cannot approve an incidental take permit unless he or she determines that the applicant has satisfied these statutory conditions.
In addition, § 7 of the ESA requires federal agencies to consult with either FWS or NMFS to ensure that any action authorized or carried out by the agency is not likely to jeopardize the continued existence of any endangered or threatened species, or result in the destruction or adverse modification of critical habitat of the species. ESA § 7, 16 U.S.C. § 1536. This process requires the Services to prepare a biological opinion that includes a finding as to whether the proposed action is likely to jeopardize the continued existence of an endangered or threatened species or its habitat. 50 C.F.R. § 402.14. Only after the Service makes this “no jeopardy” finding can it issue an incidental take permit to the applicant.
2. National Environmental Policy Act
Congress passed NEPA to protect the environment by requiring that federal agencies scrupulously weigh environmental considerations, and consider potential alternatives to proposed actions before the government launches a major federal action. Lands Council v. Powell, 395 F.3d 1019, 1026 (9th Cir.2005).
Instead of substantive outcomes, NEPA imposes procedural requirements on actions by federal agencies. Id. (citation omitted). For proposed major federal actions — where there is no dispute that the proposed action qualifies as such — NEPA requires the agency to prepare an environmental impact statement. 42 U.S.C. § 4332. “NEPA requires that a federal agency consider every significant aspect of the environmental impact of a proposed action ... [and] inform the public that it has indeed considered environmental concerns in its decisionmaking process.” Earth Island Inst. v. U.S. Forest Serv., 351 F.3d 1291, 1300 (9th Cir.2003) (internal quotation marks omitted). “In order to accomplish this, NEPA imposes procedural requirements designed to force agencies to take a ‘hard look’ at environmental consequences.” Id..
B. The Threatened Species 1. Northern Spotted Owl
The northern spotted owl inhabits “structurally complex forests” from southwestern British Columbia through Washington and Oregon to northern California. 77 Fed.Reg. 71876, 71877-78 (Dec. 4, 2012); AR 35983. Dark brown with white spots, dark brown eyes, and a barred tail, northern spotted owls are territorial and usually monogamous. 77 Fed.Reg. at 71883, AR 35984. They rely on older forested habitats that contain the structures and characteristics required for nesting, roosting, foraging, and dispersal 77 Fed. Reg. at 71884.
FWS listed the northern spotted owl as a “threatened” species in 1990 “because of widespread loss of habitat across its range and the inadequacy of existing regulatory mechanisms to conserve it.” Id. (citations omitted). In 2004 and 2011, FWS again concluded that the northern spotted owl should remain listed as a threatened species. 77 Fed.Reg. at 71887-88. Notably, historical timber harvest and land-conversion have been identified as the primary causes of an estimated 60 to 88 percent decline in northern spotted owl habitat from the 1800s to 1990. AR 35986. Additionally, the northern spotted owl faces a significant threat from the barred owl, which competes with the northern spotted owl for habitat, food, and shelter. 77 Fed. Reg. at 71878. This competitive pressure has “intensified the need to conserve and restore large areas of contiguous, high-quality habitat” across the northern spotted owl’s range. 77 Fed.Reg. at 71879.
FWS first designated federal lands in Washington, Oregon, and California as “critical habitat” for the northern spotted owl in 1992. 57 Fed.Reg. 1796 (Jan. 15, 1992). This designation “identifies specific areas essential to the conservation of a species,” and provides additional protection requirements under the ESA as to activities funded, authorized, or carried out by a federal agency. 57 Fed.Reg. at 1797; ESA § 3(5)(A), 16 U.S.C. § 1532(5)(A). FWS revised these designations in 2008 and 2012. That latter revision represented an increase in the total land area identified from previous designations due to the northern spotted owl’s “unanticipated steep decline.” 77 Fed.Reg. at 71895.
2. Southern Oregon/Northern California Coast Coho Salmon
The SONCC coho salmon are anadro-mous fish, which means they migrate from the sea to fresh water to spawn. Coho salmon have a three-year life cycle — they reach sexual maturity at three years old, and then spawn before dying. AR 35966, 37658. They naturally reproduce and spawn in streams between Punta Gorda, California, and Cape Blanco, Oregon. 62 Fed.Reg. 24588 (May 6,1997).
As a coldwater species, coho salmon require cool suitable water temperatures for spawning and egg incubation. AR 35969. High water temperatures can reduce growth, lead to egg loss, promote disease, and block upstream or downstream migration. AR 35969. Cool water temperatures are also necessary for juvenile coho salmon while rearing in freshwater environments. AR 35969.
NMFS listed the SONCC coho salmon as “threatened” in May 1997. AR 35966 (citing 62 Fed.Reg. 24588). NMFS designated critical habit for the coho salmon in May 1999. 64 Fed.Reg. 24049 (May 5, 1999). This includes portions of areas affected by Fruit Growers’ Habitat Conservation Plan. AR 35966. NMFS identified logging, road building, and water withdrawals as some of the major activities responsible for the coho salmon’s decline. 62 Fed.Reg. at 24592.
Indeed, such timber-harvest activities can alter stream features that support coho survival. 62 Fed.Reg. at 24593. For instance, roads serve as a source of sediment to streams. AR 37740-41. Sediment delivered to streams, in turn, can lead to reduced reproductive success as well as reduced growth rates for coho salmon. AR 37743. NMFS expressed “particular concern” over the “increased sediment input into spawning and rearing areas that results from loss of properly functioning riparian areas, land management activities that occur on unstable slopes, and certain agricultural practices.” 62 Fed.Reg. at 24592.
C. The Incidental Take Permits and the Supporting Documents
In 2009, Fruit Growers submitted an application to FWS for authorization under ESA § 10 to take northern spotted owls on the company’s lands in connection with timber harvest operations. AR 40133. Fruit Growers also submitted an incidental take permit application to NMFS for authorization to take coho salmon, which could be affected by logging activities. NMFS AR 150899. FWS and NMFS eventually issued incidental take permits to Fruit Growers, allowing the company to take northern spotted owls and coho salmon during the course of its logging activities. AR 40108-40110; NMFS AR 150875. The permits last for 50 years.
The incidental take permits apply to 152, 163 acres of Fruit Growers ownership. AR 35942. Fruit Growers manages its lands in northern California in three management units: the Klamath River Management Unit, the Scott Valley Management Unit, and the Grass Lake Management Unit. NMFS AR 150900. The Klamath River and Scott Valley Management Units are located west of the Interstate 5 in Siskiyou County, California, and the Grass Lake Management Unit is located east of the Interstate 5, north of Mt. Shasta, and also in Siskiyou County. NMFS AR 150900.
Before granting the permits, however, the Services required Fruit Growers to submit a Habitat Conservation Plan that specified several factors, including how Fruit Growers planned to minimize and mitigate the take. In addition to reviewing the Plan, the Services also issued an environmental impact statement under NEPA as well as a biological opinion under the ESA. AR 38346 (Final Environmental Impact Statement); AR 34071 (FWS biological opinion); AR 37604 (NMFS biological opinion).
1. Habitat Conservation Plan
Because Fruit Growers intended to take the northern spotted owl' and the coho salmon, the Habitat Conservation Plan presented separate strategies on how to conserve each species.
First, the conservation plan’s centerpiece to preserve the northern spotted owl, known as the “Terrestrial Species Conservation Program,” involved the creation of Conservation Support Areas on Fruit Growers land. Fruit Growers lands are in a “checkerboard” pattern: they consist of square blocks of land adjacent to federal lands managed by the U.S. Forest Service or the Bureau of Land Management. AR 36000, 36002. These Conservation Support Areas consist of Fruit Growers’ land located within 1.3 miles of an owl’s “activity center” — that is, the center of the owl’s “home range.” AR 36133-41; AR 35942 (defining “activity center”).
To support northern spotted owl reproduction, an owl’s home range requires appropriate amounts of nesting, roosting, and foraging habitat arrayed so that nesting pairs can survive, obtain resources, and breed successfully. 77 Fed.Reg. at 71884; AR 35984. While a home range can vary in size and shape, Fruit Growers’ Plan characterizes the home range as a circle drawn around a recognized northern spotted owl activity center (roosting or nesting site). AR 35984. Thus, the parties also refer to home ranges as “owl circles.”
Each owl circle covers approximately 3,400 acres, which is equivalent to the area of a circle with a radius of 1.3 miles. AR 35985. Northern spotted owls exhibit “central-place foraging behavior,” and, during breeding season, concentrate their activity mostly within a “core area” surrounding the nest tree. 77 Fed.Reg. at 71887; AR 35985. This “core area” of the owl circle covers 500 acres, which is equivalent to the area of a circle with a 0.5 mile radius. AR 35985. Another way to think of the 3400-acre home range is of a circle with an inner ring (0.5 mile radius) and an outer ring (1.3 mile radius).
Under the Fruit Growers Plan, the Conservation Support Areas, located within the 3400-acre owl circle, would provide “demographic support” to the conservation efforts of surrounding landowners, namely the U.S. Forest Service. AR 36133-41. Indeed, the U.S. Forest Service must manage these surrounding lands for the northern spotted owl as part of the Northwest Forest Plan. AR 36265; see also League of Wilderness Defenders Blue Mountains Biodiversity Project v. Allen, 615 F.3d 1122, 1125 (9th Cir.2010) (“[T]he Forest Service developed the Northwest Forest Plan (NWFP) to protect and enhance old-growth forest ecosystems in the Pacific Northwest and Northern California that serve as habitats for numerous species.”).
Within the Conservation Support Areas, Fruit Growers would “promote and maintain” general conditions and beneficial habitat features such as “[a]reas composed of tree species associated with use by northern spotted owls (i.e., Douglas-fir with mistletoe infections to provide nesting platforms, [and] hardwoods to provide food and shelter for prey)” and “variable tree densities.” AR 36134. Timber harvest on the Conservation Support Areas would be “restricted” and “any harvest ... [would] require evaluation for compliance with the [Habitat Conservation Plan] provisions, and written approval by [FWS].” AR 36134.
The Plan identifies 24 owl circles where Fruit Growers would establish, maintain, and manage Conservation Support Areas during the Plan’s 50-year term. By preserving Conservation Support Areas in these 24 owl circles, the Plan would permit Fruit Growers to harvest timber in another 58 owl circles. AR 36200. Even though there are fewer circles with Conservation Support Areas than circles where logging would be permitted, the Plan emphasized that the 24 owl circles have a higher conservation value and “high[er] likelihood of owl use” than the other 58. AR 36138, 36200.
This conservation value was calculated using a number of factors, including the activity center’s proximity to areas that FWS designated as northern spotted owl critical habitat. AR 36193. According to the Plan, the 24 activity centers protected by the Conservation Support Areas contribute 55 percent of the total conservation value of activity centers in the area affected by the Plan. AR 36255-56. In contrast, the lower quality activity centers, where take is allowed, represent only 18 percent of the total conservation value. AR 36255-56. The Plan stressed that most northern spotted owls that could be taken would come from activity centers with low conservation value: “the loss of conservation value at these activity centers is mitigated at a 3:1 ratio (in conservation value) by establishment of the [Conservation Support Areas].” AR 36256.
The second key part of the Plan is known as the “Aquatic Species Conservation Program,” which contains measures designed to protect and conserve species of fish, including coho salmon. AR 36102. For example, the strategy imposes “limitations on equipment use in and around waters and wetlands to minimize erosion and sedimentation and maintain hydrologic processes” along the miles of streams on Fruit Growers land that contain coho salmon. NMFS AR 150901; see also AR 36099. It also includes a road management plan, under which Fruit Growers must take steps to reduce sediment delivery to streams from those roads by 50 percent within 10 to 15 years of issuance of the permits. AR 36127.
2. Environmental Impact Statement
To further evaluate the Plan and the application, Fruit Growers and the Services prepared a Draft Environmental Impact Statement as required by NEPA. 42 U.S.C. § 4321 et seq. The Services published a Notice of Availability of Fruit Growers’ Plan and Draft Environmental Impact Statement in the Federal Register on November 13, 2009. AR 12680. In December 2009, the Services held public hearings on the proposed Plan and Draft Environmental Impact Statement, and received public comments until February 2010. Id.; see also AR 38349. The Services published the Final Environmental Impact Statement in June 2012. AR 37656.
3. Biological Opinion
During this time, both FWS and NMFS assessed whether issuing an incidental take permit to Fruit Growers would likely jeopardize the continued existence of an endangered or threatened species, or destroy or adversely modify designated critical habitat. See ESA § 7(a)(2), 16 U.S.C. § 1536(a)(2). In making this determination, FWS and NMFS issued biological opinions. Both concluded that the proposed permit would not jeopardize the species or adversely modify critical habitat. AR 38177-38180; NMFS AR 150828.
Because of the numerous issues raised by the parties, the voluminous administrative record consisting of tens of thousands of pages, and in the interest of judicial efficiency, the Court will describe additional facts germane to the threatened species, the statutes, the Plan, the biological opinion, and the Final Environmental Impact Statement, as necessary as it goes through the parties’ various claims.
D. The Dispute
On August 12, 2013, nine months after the Services issued incidental take permits to Fruit Growers, KS Wild filed a complaint for declaratory and injunctive relief against the Services. Dkt. No. 1. KS Wild alleged that the Services violated the Administrative Procedure Act, the Endangered Species Act, and the National Environmental Policy Act. Dkt. No. 1 at 2.
On August 1, 2014, KS Wild filed a •motion for summary judgment seeking to invalidate the incidental take permits, the associated biological opinions, and the Final Environmental Impact Statement. Dkt. No. 53 at 13. In response, the Services filed a cross-motion for summary judgment seeking to uphold the permits, the biological opinions, and the Final Environmental Impact Statement. Dkt. No. 63 at 9. Fruit Growers, -who intervened in the case, joined the Services’ opposition and cross-motion briefing and filed a supporting brief. Dkt. No. 65.
On November 19, 2014, the Court held a hearing on the summary judgment cross-motions. Dkt. No. 76.
II. JURISDICTION
As a threshold issue, this Court must determine whether the plaintiff organizations Klamath-Siskiyou Wildlands Center, Center for Biological Diversity, and Kla-math Forest Alliance have standing to sue.
An organization “has standing to bring suit on behalf of its members when its members would have standing to sue in their own right, the interests at stake are germane to the organization’s purpose, and neither the claim asserted nor the relief requested requires individual members’ participation in the lawsuit.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 169, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000).
For individual members to establish standing the individual must show: (1) an “injury in fact” (2) that is fairly traceable to the challenged conduct of the defendants and (3) the injury is likely to be redressed by a favorable court decision. Natural Res. Def. Council v. Jewell, 749 F.3d 776, 782 (9th Cir.2014) (citing Friends of the Earth, 528 U.S. at 181, 120 S.Ct. 693). Additionally, the interests sought to be protected must arguably be within “the zone of interests” protected by the statute in question. Ass’n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153-54, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970).
Here, the Court finds that each plaintiff organization has established standing. Plaintiffs have submitted deck-rations based on the personal knowledge of members from plaintiffs Klamath-Siski-you Wildlands Center, Center for Biological Diversity, and Klamath Forest Alliance. The members of these associations would otherwise have standing to sue in their own right. “Approval and implementation of the incidental take permits harms' and will continue to harm” members of these associations “by reducing [the members’] enjoyment of forests and forest ecosystems in the areas surrounding [Fruit Growers] lands covered by [the Plan].” Dkt. No. 57 at 4 (Sexton Deck); see also, e.g., Dkt. No. 58 at 4 (Beckett Deck) (stating that the Plan and the incidental take permit “greatly reduces my likelihood of viewing Northern Spotted Owls and Pacific fishers in their native habitat”).
Such interests are germane to the organizations’ purpose of advocating “for the forests, wildlife and waters of southern Oregon and northern California.” Dkt. No. 55 at 3 (Ruediger Deck). Members of the organizations include avid hikers, campers, photographers, and ecologists, who spend a significant time in parts of the Klamath-Siskiyou region affected by the Plan. See, e.g., Dkt. Nos. 58 at 3 (Beckett Deck), 55 at 5-6 (Ruediger Deck).
The Court can redress the members’ injuries in fact by invalidating the permits. See, e.g, Dkt. No. 61 at 10 (Haines Deck) (“Invalidating the [Plan] and incidental take permits would help to redress my injuries by reinstating protections that benefit northern spotted owls, their habitat, and the forest ecosystems in spotted owl habitat.”). Plaintiffs’ lawsuit does not require the participation of all of these individual members.
Finally, because plaintiffs’ claims seek to protect threatened species and their habitat, plaintiffs’ interests fall clearly within the ESA’s and NEPA’s zone of interests. See Envtl. Prot. Info. Ctr. v. Simpson Timber Co., 255 F.3d 1073, 1079 (9th Cir.2001) (“the interests [plaintiff] seeks to protect in this litigation clearly fall within the zone of interests contemplated by section 7(a)(2) of the ESA”); W. Watersheds Project v. Kraayenbrink, 632 F.3d 472, 485-86 (9th Cir.2011) (finding plaintiffs’ NEPA claims fall within the statute’s zone of interest).
For these reasons, and, in particular, because “the case law is abundantly clear that a minimal showing of detriment is all that is required to establish an injury in fact,” the Court finds that the plaintiffs have established standing. See Sierra Club v. U.S. Army Corps of Eng’rs, 935 F.Supp. 1556, 1570 (S.D.Ala.1996); see also Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 231 n. 4, 106 S.Ct. 2860, 92 L.Ed.2d 166 (1986) (holding that plaintiff whale watchers alleged sufficient injury in fact by asserting that their ability to engage in whale watching activities would be adversely affected by continued whale harvesting activities of the defendant).
This Court has jurisdiction pursuant to 28 U.S.C. § 1331. Plaintiffs, defendants, and defendant-intervenors consented to the jurisdiction of a magistrate judge under 28 U.S.C. § 636(c). Dkt. Nos. 10, 18, 28.
III. STANDARD OF REVIEW
Summary judgment may be granted only when, drawing all inferences and resolving all doubts in favor of the nonmoving party, there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A fact is material when, under governing substantive law, it could affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute about a material fact is genuine if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.
A court reviews final agency actions under the “arbitrary and capricious” standard of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A). Friends of Endangered Species v. Jantzen, 760 F.2d 976, 980-81 (9th Cir.1985). Under the APA, the court “shall” set aside any agency decision that it finds “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).
An agency action is arbitrary and capricious if “the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to .a difference in view or the product of agency expertise.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983).
Review under this “arbitrary and capricious” standard is narrow, and the reviewing court may not substitute its judgment for that of the agency. League of Wilderness Defenders v. U.S. Forest Serv., 549 F.3d 1211, 1215 (9th Cir.2008). Despite this narrow scope of review, the court’s inquiry must be “searching and careful.” Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). Ultimately, “ the agency must articulate a rational connection between the facts found and the conclusions made.” Or. Natural Res. Council v. Lowe, 109 F.3d 521, 526 (9th Cir.1997) (citing U.S. v. Louisiana-Pac. Corp., 967 F.2d 1372, 1376 (9th Cir.1992)).
IY. DISCUSSION
A. Endangered Species Act
1. Northern Spotted Owl
KS Wild asserts that the incidental take permit issued by the Fish and Wildlife Service should be invalidated because the Secretary’s finding that Fruit Growers satisfied the minimization and mitigation requirement was arbitrary and capricious. Likewise, KS Wild argues that the biological opinion issued by FWS should be invalidated because its no-jeopardy conclusion was based on false assumptions.
a. Incidental Take Permit
Congress provided an incidental take permit exception to ESA § 9 for takings that are incidental to, and not the purpose of, the execution of an otherwise lawful activity. ESA § 10(a)(1)(B), 16 U.S.C. § 1539(a)(1)(B). As a prerequisite to receiving an incidental take permit, the applicant must submit a habitat conservation plan that specifies:
(i) the impact which will likely result from such taking;
(ii) what steps the applicant will take to minimize and mitigate such impacts, and the funding that will be available to implement such steps;
(iii) what alternative actions to such taking the applicant considered and the reasons why such alternatives are not being utilized; and
(iv) such other measures that the Secretary may require as being necessary or appropriate for purposes of the plan.
ESA § 10(a)(2)(A)(i)-(iv), 16 U.S.C. § 1539(a)(2)(A)(i)-(iv). After opportunity for public comment, if the Secretary finds that the permit application and habitat conservation plan satisfies the following, the Secretary “shall” issue the permit:
(i) the taking will be incidental;
(ii) the applicant will, to the maximum extent practicable, minimize and mitigate the impacts of such taking;
(iii) the applicant will ensure that adequate funding for the plan will be provided;
(iv) the taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild; and
(v) the measures, if any, required under subparagraph (A)(iv) will be met;
ESA § 10(a)(2)(B)(i)-(v), 16 U.S.C § 1539(a)(2)(B)(i)-(v)..
i. FWS’s “Minimize and Mitigate” Finding for “the Applicant”
ESA § 10(a)(2)(B)(ii) requires the Secretary to find that “the applicant will, to the maximum extent practicable, minimize and mitigate the impacts of [the proposed] taking” before issuing an incidental take permit to the applicant. ESA § 10(a)(2)(B)(ii), 16 U.S.C. § 1539(a)(2)(B)(ii). Determining whether an applicant meets this standard for minimizing and mitigating the take “typically requires consideration of two factors: adequacy of the minimization and mitigation program, and whether it' is the maximum that can be practically implemented by the applicant.” Habitat Conservation Planning and Incidental Take Permit Processing Handbook at 7-3 (“HCP Handbook”).
Because the ESA is silent on the definition of “applicant,” the Court turns to the regulations issued jointly by NMFS and FWS found at 50 C.F.R. § 402. There, the Services define an “applicant” as “any person, as defined in section 3(13) of the [ESA], who requires formal approval or authorization from a Federal agency as a prerequisite to conducting the action.” 50 C.F.R, § 402.02; see also, e.g., Haw. Longline Ass’n v. NMFS, 2002 WL 732363, at *4-5, 2002 U.S. Dist. LEXIS 7263, at *14-15 (D.D.C. Apr. 25, 2002) (looking to 50 C.F.R. § 402 to define “applicant” in ESA claim). Section 3(13) of the ESA, in turn, defines the term “person” as “an individual, corporation, partnership, trust, association, or any other private entity; or any officer, employee, agent, department, or instrumentality of [any federal, state, or municipal government] ... subject to the jurisdiction of the United States.” ESA § 3(13), 16 U.S.C. § 1532(13). Meanwhile, “action” is defined as “all activities or programs of any kind authorized, funded, or carried out, in whole or in part, by Federal agencies.... Examples include, but are not limited to ... (a) actions intended to conserve listed species or their habitat....” 50 C.F.R. § 402.02.
Here, in evaluating Fruit Growers’ Habitat Conservation Plan, FWS found that applicant Fruit Growers “will, to the maximum extent practicable, minimize and mitigate the impacts of such taking” of the northern spotted owl. AR 40137 (FWS’s § 10 “Statement of Findings and Recommendations”); AR 40138 (finding the Plan “is expected to effectively avoid, minimize,. and to the extent take is likely to occur, mitigate the impacts of take ... and contribute to the recovery of the northern spotted owl population”). FWS reached this conclusion based on several factors, with the primary mitigation measure involving the establishment of 24 Conservation Support Areas by Fruit Growers. Dkt. No. 63 at 20-22 (Services’ cross-motion for summary judgment) (pointing to Conservation Support Areas as the main evidence for FWS’s “minimize and mitigate” finding); Dkt. No. 76 (summary judgment hearing), Tr. at 11/19/14, 2:43-2:45 (counsel for the Services describing Conservation Support Areas as the “centerpiece” of FWS’s five-part conservation strategy).
These Conservation Support Areas consist of Fruit Growers land located within the 24 approximately 3400-acre owl circles that Fruit Growers committed to maintaining and managing for the 50-year term of the Plan. Specifically, Fruit Growers committed to preserve a varying number of acres within each of the 24 Conservation Support Areas. For instance, within the owl circle labeled “SK002,” Fruit Growers would maintain and manage 211 acres of owl habitat within the 500-acre core area^ — which consists of nesting and roosting habitat — and a total of 931 acres within the entire 3400-acre owl circle. AR 36137 (table listing FGA habitat commitments in Conservation Support Areas). In contrast, in owl circle “SK238,” Fruit Growers committed to maintaining 0 acres of habitat within the 500-acre core area and 66 acres within the whole owl circle. AR 36137. For each of these 3400-acre circles, the U.S. Forest Service owns the bulk of the non-Fruit Growers land. AR 34181-91.
Overall, FWS identified a total of 82 valid owl circles that would be affected by the Fruit Growers Plan. FWS assigned each of these owl circles — which together support an estimated total of 158 individual northern spotted owls — a “conservation value.” AR 36190, 36194-96. FWS assessed the conservation value of each owl circle — expressed as a numeric score — using a formula that considered four variables: (1) the activity center’s proximity to designated critical habitat; (2) the owl circle’s reproductive status and history; (3) the proportion of private land in the owl circle’s inner (0.5-mile radius) and outer (1.3-mile radius) rings; and (4) the owl circle’s predicted probability of occupancy. AR 36193. The scores range from the highest conservation value of 111 to the lowest value of 0. AR 36104-96. The higher the conservation value, the greater the importance of that owl circle to preserving the northern spotted owl species.
As FWS concluded in its § 10 findings, Fruit Growers would establish Conservation Support Areas on land owned by Fruit Growers that “focus primarily on activity centers' with the highest conservation value, to provide demographic support to owl populations” on adjacent federal lands. AR 40138. FWS and Fruit Growers identified the locations of the Conservation Support Areas in large part on the basis of those high conservation values. AR 36193. And under the Plan, the Conservation Support Areas would serve as “mitigation for incidental take of lower, value activity centers.” AR 36193.
In the final analysis, according to FWS, the reason why the Conservation Support Areas would serve as “mitigation for incidental take” is that the expected taking by Fruit Growers on lower value owl circles “[would] be offset by the conservation of high quality northern spotted owl habitat” located within owl circles with the highest conservation values containing the Conservation Support Areas. Dkt No. 63 at 20 (citing AR 40141 (emphasis added)). The Services identified 24 such owl circles to be protected by conservation support; 43 owl circles where incidental take would take place; and another 15 owl circles where incidental take would be unlikely. AR 36200. After determining the conservation value of each of the 82 owl circles, the Services identified the percentage of the total conservation value contributed by each category of owl circle:
Ouecorv of Owl: Circle Ji umber of Owl Circles 'Tpidl Conservation Valúe Score "T "l (approximate #) «£Total ¶ Consérvalioii Value
Protected by Conservation Support (contains Conservation Support Areas) 24 1,645 55%
Incidental Take is Unlikely 15 80S 27%
Incidental Take is Likely 43 538 18%
Total 82 2,991 100%
AR 36194-96, 36200.
Looking at the data, and highlighting the 55 percent and 18 percent findings, FWS concluded that the “conservation value of the conserved CSAs is three times higher than the conservation value of the activity centers where take would be allowed (55:18 percent).” AR 40139. FWS further combined the total conservation value percentages for (a) the owl circles that would be protected by conservation support, and (b) the circles where incidental take is unlikely. It found that because “82 percent of the total conservation of all activity centers ... would be retained and conserved under the [Plan],” AR 40139, any incidental take by Fruit Growers would be minimized and mitigated.
KS Wild attacks this analysis. In particular, KS Wild believes FWS wrongly “credited” Fruit Growers for the conservation value that the Forest Service — someone other than ‘the applicant’ — would provide within the owl circles. Dkt. No. 53 at 34. Put differently, KS Wild argues that according to ESA § 10(a)(2)(B)(ii), FWS may only consider minimization and mitigation efforts of “the applicant,” which here is Fruit Growers; FWS may not factor into its conservation value analysis the minimization and mitigation efforts by neighboring landowners, which in this case consists of the Forest Service. By awarding Fruit Growers “credit” for preserving entire owl circles “even though most of the land in those areas is owned by someone other than [applicant Fruit Growers],” Dkt. No. 53 at 14, KS Wild contends that FWS “relied on factors which Congress has not intended it to consider”: actions by someone other than the incidental-take-permit applicant, Dkt. No. 53 at 14 (quoting Motor Vehicle, 463 U.S. at 43, 103 S.Ct. 2856). As KS Wild explains, this renders FWS’s “minimize and mitigate” finding arbitrary and capricious.
But according to the Services, there is no “credit” system by which FWS treated Fruit Growers as if it owned acreage that belonged to the federal government or other landowners. Dkt. No. 63 at 33-34. Indeed, the Services point out that the word “credit” appears nowhere in the Plan. Id. at 34. The Services admit that FWS “simply included federal lands in the calculation of each [owl circle’s] conservation value to help ... identify which [owl circles] should be a priority for conservation.” Id.
Yet according to the Services, just because adjacent federal lands happen to make certain owl circles more valuable for owl conservation than others “does not mean that the Forest Service is being treated as a co-applicant for the permit, or that incidental take coverage extends to those federal lands.” Id. Instead, the Services argue that “[b]eeause the Conservation Support Areas are adjacent to designated critical habitat and other high value habitat on federal lands, the protection of which is the linchpin to recovery of the Northern Spotted Owl under the 2011 Revised Recovery Plan,” FWS reasonably calculated the conservation values of each owl circle, and properly applied that value in developing the Conservation Support Areas. See Dkt. No. 63 at 34-35.
Counsel for the Services summed up the Services’ position at oral argument: “At the end of the day, what is being analyzed and ‘credited,’ to the extent that is happening, is what Fruit Growers is doing on its own land. Period.” Dkt. No. 76, Tr. at 11/19/14, 2:44-2:49. .
The Court is not persuaded by this characterization, and finds that FWS improperly attributed the conservation values of entire owl circles containing the Conservation Support Areas to applicant Fruit Growers, despite the fact that Fruit Growers’ ownership makes up only a fraction of entire owl circles. In doing so, the Services considered the minimization and mitigation efforts of an entity other than “the applicant.”
“It is well established that when the statute’s language is plain, the sole function of the courts — at least where the disposition required by the text is not absurd — is to enforce it according to its terms.” Lamie v. U.S. Trustee., 540 U.S. 526, 534, 124 S.Ct. 1023, 157 L.Ed.2d 1024 (2004) (internal quotation marks and citations omitted); Caminetti v. U.S., 242 U.S. 470, 485, 37 S.Ct. 192, 61 L.Ed. 442 (1917) (“[T]he meaning of the statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain, ... the sole function of the courts is to enforce it according to its terms.”).
Here, ESA § 10(a)(2)(B)(ii) states plainly that when issuing an incidental take permit, the Secretary must find that “the applicant will ... minimize and mitigate the impacts of such taking” of an endangered or threatened species. ESA § 10(a)(2)(B)(ii), 16 U.S.C. § 10(a)(2)(B)(ii) (emphasis added). An “applicant,” in turn, is someone “who requires formal approval or authorization from a Federal agency as a prerequisite to conducting the action.” 50 C.F.R. § 402.02. The “applicant” in this case is not the Forest Service or any other government entity. Fruit Growers is the only “applicant” under ESA § 10 — it alone seeks formal authorization from FWS to pursue actions (e.g., logging) on its own lands without the risk of violating the ESA. AR 35942 (“[Fruit Growers] is applying to USFWS and NMFS for permits allowing incidental take of federally listed threatened species.”).
Nonetheless, in evaluating the applicant’s minimization and mitigation, FWS factored in the efforts by entities other than applicant Fruit Growers. This is best illustrated by looking at the conservation values for two specific owl circles: out of the 24 owl circles with Conservation Support Areas, the circles labeled “SK378” and “SK238” (attached to this Order as Exhibits 1 and 2, respectively) have the lowest number of acres that Fruit Growers committed to preserving — 62 and 66, respectively — yet have the third highest and the highest conservation values — 100 and 111, respectively. AR 36137, AR 36194.
For SK378, Fruit Growers committed to preserve 33 acres of habitat in the core nesting and roosting area, and a total of 62 acres of habitat in the entire 3400-acre owl circle. AR 36137. This means that for committing to preserve less than two percent of an owl circle, Fruit Growers .nevertheless benefited by having that circle’s high conservation value score of 100 factored into FWS’s calculation of the total conservation value for owl circles with Conservation Support Areas. This, despite the fact that the Forest Service owns over 2,500 acres (or nearly 75 percent) of that circle. AR 34188.
Similarly, owl circle SK238 presents stark results. The Plan required Fruit Growers to preserve 0 acres of core-area habitat, and only 66 acres of habitat for the entire 3400-acre circle. AR 36137. As KS Wild points out, despite Fruit Growers’ marginal commitment to preserve less than two percent of the 3400-acre owl circle, and despite the fact that the federal government owns over 2,400 acres (or 70 percent) of that circle, AR 34184, FWS attributed the conservation value of 111 to Fruit Growers.
The Court summarizes these figures in the table below using approximate numbers:
Table 2, Fruit Growers-Supporled Owl Circles with Lowest Habitat Commitments
Owl Circle Total Acres in Owl Circle Acres Owned by Forest Service Acres Fruit 'Growers Committed (ó Preserve % of Circle ’Owricdi’hy' Forest Service %'¡;of Circle i Frisit Growe'rs Committed to Preserve Conservat -ion Valué ’
SK378 3400 2500 62 73 5°, J.8% 100»
SK238 3400 2400 66 70.5% 1.9% 111*
*Tied for highest conservation value out of 82 valid owl circles affected by Plan.
**Fourth highest conseiration \ alue out of 82 valid owl circles affected by Plan. And third highest among the 24 owl circles with Conservation Support Areas.
Highlighting these two owl circles is not cherry picking. For 17 of the 24 owl circles supported by Conservation Support Areas, Fruit Growers’ Conservation Support Areas make up less than 15 percent of the total owl circle. AR 36194-96 (listing conservation value for all circles); AR 36137 (listing number of acres Fruit Growers committed to preserving in circles with Conservation Support Areas). Yet FWS attributed the conservation value of these owl circles to Fruit Growers by adding them to the total conservation value points in owl circles with Conservation Support Areas. Compare AR 36194-96 (listing conservation values for all circles and sum total conservation value) with AR 36200 (showing percentage of total conservation value contributed by each category of owl circle).
FWS then weighted the total conservation value for these 24 owl circles against the total conservation value of owl circles where take is expected to occur. Even though for all but seven of the 24 owl circles, the Conservation Support Areas comprise less than 15 percent of the 3400-acre circle, the “82 percent of the total conservation” figure touted earlier by the Services inure to the benefit of Fruit Growers. AR 40139. This is so even though 27 percent of that 82 percent total conservation value figure does not involve owl circles with Fruit Growers-established Conservation Support Areas; rather they comprise the 15 owl circles where take is not even likely to occur. AR 36200.
Significantly, the conservation value calculations themselves do not factor in Fruit Growers’ specific mitigation efforts — its development of the Conservation Support Areas. Instead, the formula for the conservation value relies on four other factors. Admittedly, one of these factors includes examining the proportion of private land within the owl circle. AR 36193. None of these factors, however, involve a consideration of what impact, if any, Fruit Growers’ Conservation Support Areas would have on the final conservation value.
In other words, the record leaves open the possibility that the conservation values for the highest value owl circles are what they are regardless of whether Conservation Support Areas are ever created in those circles by Fruit Growers. AR 36193.
Contrary to what the Services claimed at oral argument, the Court finds it arbitrary and capricious to conclude: “what is being analyzed and credited ... is what Fruit Growers is doing on its own land.” See Dkt. No. 76, Tr. at 11/19/14, 2:44-2:49. In finding that “82 percent of the total conservation of all [owl circles] ... would be retained and conserved under the [Plan],” AR 40139, FWS assumes that it is Fruit Growers’ actions that would provide the beneficial conditions to the owls, which then generates high conservation values. This is an arbitrary and capricious assumption.
FWS’s weighing of owl-cirde conservation values relied on the conservation efforts of entities other than applicant Fruit Growers, namely the Forest Service. It is the Forest Service that owns the overwhelming majority of acreage within the 3400-acre owl circles. Because the Forest Service is not an incidental-take-permit “applicant,” FWS erred when it failed to rely solely on Fruit Growers’ minimization and mitigation efforts. See Sierra Club v. Babbitt, 15 F.Supp.2d 1274, 1282 (S.D.Ala. 1998) (“FWS cannot comply with the strict ESA mandate that the HCP ‘minimize and mitigate’ the effects of the projects ‘to the maximum extent practicable’ simply by relying on speculative future actions by [no-napplicant] others.”).
Additionally, the Services’ own guidance, the HCP Handbook at 7-3, states that the Services may only consider habitat conservation measures that are provided by the incidental-take-permit applicant. In those instances where an HCP covers activities implicating multiple landowners, the permit holder must “have specific authority over the other parties affected by the HCP and be willing to exercise that authority, or must secure commitments from them that the terms of the HCP will be upheld.” HCP Handbook at 7-5 to 7-6. Here, Fruit Growers possesses no such “specific authority” over the U.S. Forest Service or any other landowner to guarantee that those non-applicants will uphold the terms of the Plan.
In the final analysis, an agency decision is “arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider.” Motor Vehicle, 463 U.S. at 43, 103 S.Ct. 2856. By relying on the minimization and mitigation efforts by the U.S. Forest Service, an entity other than the applicant Fruit Growers, FWS improperly found that Fruit Growers satisfied the “minimize and mitigate” requirement in ESA § 10(a)(2)(B)(ii).
Consequently, the decision to issue the incidental take permit was arbitrary and capricious. Applicant landowners seeking to perform actions that would lead to a taking of an endangered or threatened species should not be permitted to obtain incidental take permits by piggybacking off of already-existing conservation efforts by their non-applicant neighbors.
Were the Court to affirm FWS’s “minimize and mitigate” finding, Fruit Growers would be permitted to log more than 36,-000 acres of suitable northern spotted owl habitat, and take 83 northern spotted owls, while only preserving and protecting 7,100 acres. AR 36191, 36202-04, 36255. The Court finds that FWS failed to “articulate a rational connection” between these facts and its § 10(a)(2)(B)(ii) finding. See Or. Natural Res. Council, 109 F.3d at 526.
ii. Fruit Growers’ Unenforceable Commitments
In their § 10 findings, the Services identified five proposed mitigation measures for the owl taking, the first of which involves the creation of Conservation Support Areas. Another mitigation measure involves increasing the northern spotted owl’s dispersal habitat. According to the Services’ findings: “The changes in timber management practices identified in the proposed [the Plan] are expected to result in an increase in northern spotted owl foraging and dispersal habitat across [Fruit Growers] ownership over the permit term due to a decrease in clearcutting and other even-aged management practices.” AR 40140. The presence of adequate dispersal habitat is essential for the northern spotted owl’s population growth as it can provide protection from predators and minimal foraging opportunities. See 77 Fed.Reg. at 71884-85; AR 34093 (“Dispersal habitat is essential to the dispersal of juvenile, non-territorial, or displaced northern spotted owls”).
KS Wild argues that the Services’ § 10 “minimize and mitigate” finding is arbitrary and capricious because Fruit Growers’ promise to increase dispersal habitat through a decrease in clearcutting is unenforceable. KS Wild contends that the Plan does not actually obligate Fruit Growers to reduce clearcutting or increase dispersal habitat. Dkt. No. 53 at 41-42. The Plan also does not set forth objective criteria by which to measure compliance; instead, the Plan only states that Fruit Growers will merely “promote” practices that develop and maintain dispersal habitat. Id.
While the Services concede that the Plan does not explicitly require Fruit Growers to reduce clearcutting as part of its mitigation efforts, the Services point out that “the Plan does expressly require [Fruit Growers] to ‘promote forest management practices that develop and maintain dispersal habitat across its ownership to provide connectivity between the [Conservation Support Areas] and nearby federal lands.’” Dkt. No. 63 at 26 (quoting AR 36139) (emphasis added by Services). The Services further explain that a decrease in clearcutting is “an expected outcome of [the] Plan due in part to the enforceable obligation of [Fruit Growers] to implement forest management practices that ‘develop and maintain dispersal habitat across its ownership.’ ” Id. (emphasis added).
Contrary to what the Services contend in their summary judgment cross-motion, the Plan does not require Fruit Growers to “implement” practices that develop and maintain dispersal habitat. Rather, the Plan only states that Fruit Growers will “promote” such practices. AR 36139. Despite any good faith effort on the part of Fruit Growers to promote or encourage certain forest practices, the Court agrees with KS Wild that the Plan lacks specific obligations to reduce clearcutting.
Moreover, the Plan is bereft of any objective criteria to give it the teeth needed to ensure, through enforcement by the Services or the public, that Fruit Growers’ practices will lead to an actual increase in dispersal habitat. See Southwest Ctr. for Biological Diversity v. Bartel, 470 F.Supp.2d 1118, 1140 (S.D.Cal.2006) (enjoining incidental take permit after finding applicant’s duty to “avoid” vernal pool habitat “toothless” because the “avoidance standard allows the City or developer to unilaterally determine that a particular development project cannot avoid the vernal pools”). Indeed, there is a difference between “promoting” or expecting the development and maintenance of dispersal habitat, and actually developing and maintaining dispersal habitat.
Finally, the Plan itself, in a section of the appendix entitled “Monitoring Protocols,” expressly states: “Because [Fruit Growers] will maintain a forested landscape on their ownership, the biological objective for dispersal habitat will be met. No compliance monitoring or additional reporting is required to document compliance with this measure.” AR 36449 (emphasis added). As for that statement’s conclusory first sentence, the Services in their Final Environmental Impact Statement went on to admit that the statement that “almost any forested landscape can provide dispersal opportunities” is “an oversimplified, if not incorrect, characterization of dispersal habitat.” AR 38942 (responding to public comment from KS Wild regarding Draft Environmental Impact Statement).
The fact remains that ESA § 10(a)(2)(B)(ii) requires the Secretary to find that “the applicant will ... minimize and mitigate the impacts” of a taking. ESA § 10(a)(2)(B)(ii), 16 U.S.C. § 1539(a)(2)(B)(ii) (emphasis added). The Secretary cannot make this ESA § 10(a)(2(B)(ii) finding by relying on mitigation that the Services cannot enforce. Here, without concrete, objective criteria to enforce Fruit Growers’ commitments to increase dispersal habitat, the Court finds the Services’ conclusion that “the applicant will” in fact mitigate the taking of owls by reducing clearcutting to be arbitrary and capricious,
b. Biological Opinion
In addition to the Secretary’s responsibility to review incidental-take-permit applications under ESA § 10, the Secretary must insure that issuance of a permit complies with ESA § 7(a)(2), 16 U.S.C. § 1536(a)(2). Under § 7, a federal agency must “insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [critical] habitat of such species.... ” ESA § 7(a)(2), 16 U.S.C. § 1536(a)(2) (emphasis added). In considering whether to issue an incidental take permit, the Service — in this case FWS — must prepare a “biological opinion” addressing whether jeopardy is likely to occur for any protected species. Ctr. for Biological Diversity v. U.S. BLM, 698 F.3d 1101, 1107 (9th Cir.2012) (citing 50 C.F.R. § 402.14). An action will result in “jeopardy” if it will “reduce appreciably the likelihood of both the survival and recovery of a listed species.... ” 50 C.F.R. § 402.02. In this regard, the “no jeopardy finding required by ESA § 7(a)(2) is identical to the survival finding required under § 10(a)(2)(B)(iv).” Nat’l Wildlife Fed’n v. Babbitt, 128 F.Supp.2d 1274, 1286 (E.D.Cal.2000) (quoting § 10(a)(2)(B)(iv), which requires the Secretary to find “the taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild”).
If FWS concludes that jeopardy or adverse modification is likely, then any take resulting from the proposed action is subject to ESA § 9 liability. Ctr. for Biological Diversity, 698 F.3d at 1107 (citations omitted) (noting that while an applicant can technically disregard the biological opinion, “it does so at its own peril”). On the other hand, if FWS “concludes in its biological opinion that no jeopardy or adverse modification is likely, but that the project is likely to result only in the ‘incidental take’ of members of listed species, then the FWS will provide, along with its biological opinion, an incidental take statement authorizing such takings.” Id. (citing 50 C.F.R. § 402.14(i)). This incidental take statement “functions as a safe harbor provision immunizing persons from Section 9 liability and penalties for takings committed during activities that are otherwise lawful and in compliance with its terms and conditions.” Id. (internal quotation marks and citations