From The Pacific Environmental Advocacy Center's press release ( http://www.lclark.edu/org/peac/)
In a ruling with broad implications for improving habitat conservation of endangered and threatened species throughout the West, the Ninth Circuit Court of Appeals today overturned U.S. Fish and Wildlife Service's longstanding narrow interpretation of the Endangered Species Act's protections for critical habitat.
The case, Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service, raised questions about whether FWS was adequately protecting the designated "critical habitat" of northern spotted owls. Appellants challenged FWS' finding that timber harvest in thousands of acres of the owls' critical habitat in Oregon and Washington did not constitute "destruction or adverse modification" of that habitat. The court threw out this conclusion, ruling that the agency had ignored the importance of critical habitat for recovery of the owls.
"[T]he ESA was written not merely to forestall the extinction of species..., but to allow a species to recover to the point where it may be delisted," Judge Gould wrote in the unanimous opinion for the three judge panel. "If FWS follows its own regulation, then it is obligated to be indifferent to, if not to ignore, the recovery goal of critical habitat," the court's opinion continued. "This cannot be right," it concluded.
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Analysis of potential implications:
- All timber sales in spotted owl critical habitat have strong legal ground for cancellation or "back-to-the-drawing board" revisions.
- This applies to many (even most?) timber sales under the Northwest
Forest Plan. Most old growth timber sales contain designated spotted owl habitat.
- Batwings (see link to portland.indymedia.org) which is up for logging at any time can probably be challenged under the lawsuit.
- Super evil logging projects like the Biscuit, Timbered Rock, B&B Salvage, and Five Buttes sales falls under these designations in large part.
- I'm not a lawyer, but I feel comfortable saying this could be considered the biggest legal victory for Cascadia's westside forests since the initial spotted owl lawsuit! (1992?)
- Beware! Timber companies with contracts to log may attempt emergency, last-ditch logging operations. Politicians could throw out congressional riders, etc. as the timber companies and the forest service tries to get away with whatever they can quickly before the results of the lawsuit unfold!
You can read the Judge's decision online:
http://www.lclark.edu/org/peac/objects/GP_OPINION.pdf
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exerpts:
CRITICAL HABITAT
"The agency's controlling regulation on critical habitat
thus offends the ESA because the ESA was enacted not
merely to forestall the extinction of species (i.e., promote a
species survival), but to allow a species to recover to the point
where it may be delisted. See 16 U.S.C. § 1532(3) (defining
conservation as all methods that can be employed to "bring
any endangered species or threatened species to the point at
which the measures provided pursuant to this [Act] are no
longer necessary"); Sierra Club, 245 F.3d at 438."
"The critical habitat analysis is therefore irredeemably
flawed."
"LSRs cannot stand in for critical habitat within the
meaning of the ESA. ... Compliance with the NFP, as important as it is,
does not in itself generate the same protection for habitat as
Section 7 compliance."
"If the FWS wants to change the boundaries of the critical
habitat, it might do so if permitted by law after notice and
comment procedures."
"We conclude that the jeopardy analysis conducted by
the FWS in the six BiOps at issue in this case was permissible
and within the agency's discretion. We affirm the district
court's grant of summary judgment to the agency in this
respect. However, we conclude that the critical habitat analysis
in the six BiOps was fatally flawed because it relied on an
unlawful regulatory definition of "adverse modification" and
it impermissibly substituted LSRs for critical habitat. Neither
of these errors was harmless. We reverse the judgment of the
district court and we remand, directing the district court to
grant summary judgment to the Petitioners on the critical habitat
inquiry."
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