ELR Citation: 51 ELR 20011
No(s). 6:17-cv-00860-AA (D. Or. Jan 15, 2021) (Aiken, J.)

A district court denied an animal rights group's motion for summary judgment in a challenge to permits and safe harbor agreements (SHAs) issued by FWS for an experiment on nonfederal land to gain data on the relationship between barred owl removal and northern spotted owl recovery. The group argued FWS violated the ESA by issuing a permit that failed to achieve a "net conservation benefit," by failing to use the best biological and habitat information in forming baseline conditions, and by failing to analyze the effects of the SHAs on critical habitat. The court found the Service's finding that the permits and SHAs at issue were reasonably expected to provide a net conservation benefit was neither plainly erroneous nor inconsistent with its safe harbor policy, that the Service sufficiently described the baseline conditions of properties subject to the SHAs, and that it sufficiently analyzed the effects of the SHAs on critical habitat. The group also argued FWS violated NEPA by failing to supplement its 2013 EIS because it did not emphasis in its EIS that nonfederal landowner participation was "crucial" to the experiment, the EIS did not disclose that SHAs and permits would authorize habitat destruction, and the SHAs and permits needed to be discussed together in one EIS as they were connected agency actions. The court found the Service's failure to emphasize in the EIS that nonfederal landowners' participation was "crucial" did not require it to prepare a supplemental EIS, that authorizing incidental take for a landowner's otherwise lawful activities did not constitute a substantial change relevant to environmental concerns, and that the SHAs and permits were not necessarily connected actions. It therefore denied the group's motion for summary judgment and granted FWS' cross-motion.