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Environmental Law

: ESA Blawg

Federal judge in Arizona defers to FWS and Forest Service analysis, rejects claims of effects on Mexican spotted owl

By Keith Rizzardi

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Center for Biological Diversity v. U.S. Forest Service, No. CV-09-8116-PHX-FJM, 2009 U.S. Dist. LEXIS 103382 (D. Az. Nov. 5, 2009)

BACKGROUND: The Warm Fire was started by lightning on June 8, 2006, in the Kaibab National Forest and burned approximately 60,000 acres. This action challenges a project known as the "Warm Fire Recovery Project," which involves the rehabilitation and recovery of approximately 39,000 acres burned by the Warm Fire in the North Kaibab Ranger District. Specifically, the Project proposes to harvest fire-killed trees and reduce fuel loads for future fires on approximately 9,000 acres, and reforestation tree planting on approximately 10,000 acres. The Forest Service identified three "purposes and needs" for the Warm Fire Project: (1) recover economic value from burned timber, (2) reforest burned conifer stands, and (3) reduce fuel loads, while retaining sufficient standing dead trees ("snags") for wildlife habitat and woody debris to benefit soils. FS AR doc. 426 at 16939-41... Of the 9,000 acres of burned land proposed for logging, 3,460 acres are in critical habitat designated for the Mexican Spotted Owl ("MSO"). In 2004, the MSO was listed under the Endangered Species Act as a threatened specie and critical habitat was designated, including land in the North Kaibab Ranger District.

LEGAL ISSUE: Plaintiffs now challenge the decision to authorize the Warm Fire Project. They argue that (1) the FWS violated the Endangered Species Act ("ESA"), 16 U.S.C. ? 1536, by concurring with the Forest Service's determination that the Project is "not likely to adversely affect" the MSO...

RULING: In the present case, the FWS agreed with the Forest Service's conclusion that the Project was not likely to adversely affect the MSO. FS AR doc. 399. Given the lack of MSO sightings and because the Project Area was severely burned by the Warm Fire, the FWS determined that the MSO's occurrence in the Project Area was "extremely unlikely" and that "any potential direct or indirect effects on individuals of the species are discountable." Id. Plaintiffs argue that the FWS's concurrence was arbitrary and capricious and therefore violated the ESA... the administrative record sufficiently demonstrates that the Forest Service and FWS considered the advice of their scientists, describes the progression of the consultative process, and evidences the coordination and compromise incorporated in that process.

Image shows fire suppression efforts by the U.S. Forest Service associated with the Kaibab Forest, Warm Fire Project, Post-fire recovery.

SEE ALSO, USFS News Release,

Full post as published by ESA Blawg on November 18, 2009 (boomark / email).