IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

CASCADIA WILDLANDS, OREGON WILD, 

and CENTER FOR BIOLOGICAL 

DIVERSITY, 

Plaintiffs, 

v. 

JIM THRAILKILL, Field Supervisor,) 

Roseburg Field Office, in his ) 

capacity, UNITED STATES FISH AND ) 

WILDLIFE SERVICE, an agency ) 

within the United States ) 

Department of Interior, ) 

et al., ) 

Defendants, ) 

ROUGH & READY LUMBER LLC, 

SWANSON GROUP MFG. LLC, and 

BOISE CASCADE WOOD PRODUCTS LLC, 

) 

) 

) 

) 

) 

----~D~e~f~e~n~d~a~n~t_-=I~n~t~e=r~v~e~n=o~r~s~. ______ ) 

COFFIN, Magistrate Judge: 

Civil No. 6: 14-1236-TC 

0 R D E R 

Plaintiffs bring this action pursuant to the Administrative 

Procedures Act, 5 U.S.C. §§ 701 et ~· They seek to enjoin a 

Case 6:14-cv-01236-TC Document 23 Filed 09/23/14 Page 1 of 36
federal action allowing logging activities in an area affected by 

fire. 

Presently before the court is plaintiffs' motion (#13) 

for a preliminary injunction. Plaintiffs make numerous arguments in 

support of multiple claims and counts, but ultimately the arguments 

are not persuasive and, for the reasons stated below, the motion 

for a preliminary injunction is denied. 

Factual Background & Legal Background 

The Douglas Fire Complex and the Douglas Fire Complex Recovery 

Project 

The Douglas Fire Complex burned approximately 48,000 acres of 

federal and non-federally managed land in the southern Oregon 

Klamath Mountains. 

In response to the Douglas Fire Complex, the Medford District 

of the Bureau of Land Management (BLM) prepared the Douglas Fire 

Complex Recovery Project. The BLM issued the Douglas Fire Complex 

Recovery Project Environmental Assessment (EA) for public comment 

on May 7, 2014, and took public comment until July 22, 2011. 

Plaintiffs provided timely comments on the Douglas Fire Complex 

Recovery Project EA. The BLM issued a Decision Record and Finding 

of No Significant Impact ( DR/FONSI) approving the Douglas Fire 

Complex Recovery Project on June 26, 2014. The BLM' s DR/FONSI 

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Case 6:14-cv-01236-TC Document 23 Filed 09/23/14 Page 2 of 36
authorizes salvage logging on approximately 1, 276 acres of BLM 

land, and includes hazard tree removal along roads (to which 

Plaintiffs do not object), as well as logging of interior forests 

for economic recovery. The BLM submitted a Biological Assessment 

) 

(BA) to FWS on April 28, 2014, determining the project "may affect 

and is likely to adversely affect" (LAA) spotted owls and their 

critical habitat. FWS subsequently issued the challenged BiOp. The 

Douglas Fire Complex Salvage Timber Sales include the Rogue Cow, 

Burnt Rattler, and Rock Star Timber Sales. The sales are located in 

the Grants Pass Resource Area of the ELM's Medford District, and 

logging operations are currently underway. 

FWS Biologic Opinion for the Douglas Fire Complex Recovery Project 

on June 25, 2014, in response to ELM's submission of its 

biological assessment, the FWS issued a Biological Opinion (BiOp) 

of the Douglas Fire Complex Recovery Project. In the BiOp, "the 

Service concludes that the proposed Project is likely to 

incidentally take 14 adult and up to 10 young spotted owls 1 , at 

seven sites. The take is in the form of harm caused by habitat 

destruction or degradation via timber harvest of up to 33 acres of 

1

The authorization of the take of the ten young spotted owls is 

based on a prediction of the offspring from these 7 sites. 

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Case 6:14-cv-01236-TC Document 23 Filed 09/23/14 Page 3 of 36
NRF2 habitat and 1, 04 9 acres of PFF3 habitat that is likely to 

significantly disrupt the breeding, feeding, and sheltering 

behavior of these spotted owls to an extent that causes injury or 

death. BiOp, 59. The BiOp also concludes that the Douglas Fire 

Complex Recovery Project "is not likely to result in jeopardy to 

the species or destruction or adverse modification of critical 

habitat." BiOp, 59. 

The Endangered Species Act 

Congress enacted the ESA with the purpose to "provide a means 

whereby the ecosystems upon which endangered species and threatened 

species depend may be conserved," and to "provide a program for the 

conservation of such endangered species and threatened species." 16 

U.S.C. § 1531(b). An Endangered Species is "any species which is in 

danger of extinction throughout all or a significant portion of its 

range." 16 U.S.C. § 1522(6); 50 C.F.R. § 424.02(e). A Threatened 

Species is "any species which is likely to become an endangered 

species within the foreseeable future throughout all or a 

significant portion of its range. 16 U.S.C. § 1532(19); 50 C.F.R. 

§ 424.02(m). The northern spotted owl is a threatened species. 

Section 7 of the ESA requires federal agencies to conserve 

2The acronym for "nesting, roosting, , foraging." 

3

The acronym for "post-fire foraging." 

4 - ORDER 

Case 6:14-cv-01236-TC Document 23 Filed 09/23/14 Page 4 of 36
species listed as endangered or threatened under the ESA, and 

whenever a federal action may affect an ESA-listed species, 

the agency undertaking such an action must consult the Service 

having jurisdiction over the relevant listed species. 16 U.S. C. 

1536 (a) (3). The United States Fish and Wildlife Service (FWS) 

is responsible for administering the ESA with respect to 

terrestrial wildlife. 50 C.F.R. §402.01(b). FWS, as the consulting 

agency for terrestrial wildlife, evaluates the effects of the 

proposed federal action on the survival and recovery of Endangered 

or Threatened species and any potential destruction or adverse 

modification of critical habitat in a biological opinion. 16 

U.S.C. § 1536(a) (2). 

A biological opinion is the heart of the ESA Section 7 

consultation process, which requires federal agencies to "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." 16 U.S.C. § 1536(a) (2). 

The biological opinion must be based on "the best scientific and 

commercial data available or which can be obtained during the 

consultation for an adequate review of the effects that an action 

may have upon listed species or critical habitat." 16 U.S.C. § 

1536(a) (2); 50 C.F.R. § 402.14 (d). In the biological opinion, the 

FWS evaluates: 1) the current status of the listed species or 

critical habitat; 2) the effects of the action; and 3) the 

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Case 6:14-cv-01236-TC Document 23 Filed 09/23/14 Page 5 of 36
cumulative effects to determine if the proposed action will 

jeopardize the existence of the listed species. 50 C. F. R. §§ 

402.14(g)(2), (g)(3). 

If the biological opinion concludes that jeopardy is not 

likely and that there will not be adverse modification of critical 

habitat, or that there is a "reasonable and prudent alternative" to 

the agency action that avoids jeopardy and adverse modification and 

that the "incidental taking" of endangered or threatened species 

will not violate section 7(a) (2), the consulting agency can 

issue an Incidental Take Statement (ITS) which, if followed, 

exempts the action agency from the prohibition on takings found in 

Section 9 of the ESA. Section 9 of the ESA makes it unlawful 

for any person to take an ESA-listed species. 16 U.S.C. § 

1538 (a) (1). 4 

Section 4 of the ESA states that FWS "shall develop and 

implement plans ... referred to as 'recovery plans' for the 

conservation and recovery" of species listed under the Act. 16 

U.S.C. §1533(f). "Conservation" refers to "the use of all methods 

and procedures which are necessary to bring any endangered species 

or threatened species to the point at which the measures provided 

4

Take is defined as to "harass, harm, pursue, hunt, shoot, wound, 

kill, trap, capture or collect, or attempt to engage in such conduct." 

16 U.S.C. § 1532(19). Harm is defined to include significant habitat 

modification or degradation that results in death or injury to a 

listed species by significantly impairing essential behavioral 

patterns, including breeding, feeding, or sheltering. 50 C.F.R. 

§17.3. 

6 - ORDER 

Case 6:14-cv-01236-TC Document 23 Filed 09/23/14 Page 6 of 36
pursuant to this Act are no longer necessary," and "conservation" 

is synonymous with the "recovery" of a species in the ESA context. 

16 U.S.C. § 1532(3). Congress expects FWS to proactively utilize 

the conservation measures contained in recovery plans to remove the 

species from the protection of the ESA. 16 u.s.c. §§ 

1533 (f) (1) (B) (i)- (iii) 

Administrative Procedures Act 

The APA confers a right of judicial review on any person that 

is adversely affected by agency action. 5 U.S. C. § 7 02. Upon 

review, the court shall "hold unlawful and set aside agency actions 

... found to be arbitrary , capricious, an abuse of discretion or 

otherwise not in accordance with the law." 5 U.S.C. § 706(2) (A). 

A decision 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 in front of 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 (1983). 

7 - ORDER 

Case 6:14-cv-01236-TC Document 23 Filed 09/23/14 Page 7 of 36
Standards for Preliminary Injunction 

In the landmark case of Winter v. Natural Resources 

Defense Council, the Supreme Court clarified that in order to 

obtain an injunction, a plaintiff must establish that (1) it is 

likely to succeed on the merits, ( 2) it is likely to suffer 

irreparable harm in the absence of injunctive relief, 5 ( 3) the 

balance of the equities tips in its favor 6 , and (4) an injunction 

5

A plaintiff must show that absent an injunction, irreparable 

harm is not only possible, but likely. Winter, 555 U.S. at 22. In 

Bozeman, the Montana District Court developed what has become known 

as the Bozeman burden-shifting framework as a practical means to guide 

its analysis of irreparable harm in light of two divergent lines of 

Ninth Circuit cases articulating the plaintiff's burden in ESA cases. 

First, "a plaintiff must substantiate its claim by alleging a specific 

irreparable harm resulting from the ESA violation" so that the court 

may "tailor an injunction to remedy that harm." Bozeman, 950 F.Supp.2d 

1196, 1202 (D. Mont. 2013). At the outset, "the plaintiff must allege 

that, as a result of the ESA violation, a project will jeopardize the 

continued existence of a specific endangered or threatened species or 

will destroy or adversely modify its critical habitat." Id. (relying 

on Burlington Northern, 23 F. 3d 1508, 1511 (9th Cir. 1994)) . If the 

plaintiff satisfactorily alleges specific harm, the court presumes the 

harm to be irreparable and the burden shifts to the agency, "which 

must show that the action will not jeopardize the species or destroy 

or adversely modify its critical habitat.~~ Id (citing Wash. Toxics 

Coal. v. EPA, 413 F. 3d 1024, 1035 (9th Cir. 2005)). If the agency 

presents sufficient evidence, the plaintiff must produce its own 

evidence of irreparable harm in order for an injunction to issue. Id. 

at 1203 (relying on Burlington Northern and National Marine Fisheries 

Service, 422 F. 3d 782 (9th Cir. 2005)). 

6 In ESA claims, the balance of the hardships always tips sharply 

in favor of the endangered or threatened species. Wash. Toxics, 413 

F.3d at 1035; see also Marbled Murrelet v. Babbitt, 83 F.3d 1068, 1073 

(9th Cir.1996) ("Congress has determined that under the ESA the 

balance of hardships always tips sharply in favor of endangered or 

threatened species") . 

8 - ORDER 

Case 6:14-cv-01236-TC Document 23 Filed 09/23/14 Page 8 of 36
is in the pub 1 i c interest . 5 55 U . S . 7 , 2 0 , 12 9 S . C t . 3 6 5 , 1 7 2 

L.Ed.2d 249 (2008) 

In order to secure an injunction, a plaintiff must satisfy all 

four Winter prongs. Alliance for the Wild Rockies v. Cottrell, 632 

F.3d 1127, 1135 (9th Cir.2011). 

As to likelihood of success on the merits, the long-entrenched 

but lesser "serious questions" standard remains viable after 

Winter. Cottrell, 632 F.3d at 1134-35. In Cottrell, the Court held 

that serious questions going to the merits and a hardship balance 

that tips sharply toward the plaintiff can support issuance of an 

injunction, assuming the other two elements of the Winter test are 

also met. Id. at 1132. Cottrell clarifies that district courts 

retain discretion to employ a sliding scale, and that plaintiffs 

are entitled to judicial application of the lesser "serious 

questions" test upon satisfactory showing on the other three Winter 

prongs. Id. at 1135 ("Because it did not employ the 'serious 

questions' test, the district court made an error of law in denying 

the preliminary injunction sought by AWR. We conclude that AWR has 

shown that there is a likelihood of irreparable harm; that there 

are at least serious questions on the merits • • • I that the balance 

of hardships tips sharply in its favor; and that the public 

interest favors a preliminary injunction"). 

9 - ORDER 

Case 6:14-cv-01236-TC Document 23 Filed 09/23/14 Page 9 of 36
As discussed in more detail below, plaintiff has not 

adequately established that they are likely to succeed on the 

merits. 

A likelihood of success for plaintiffs is simply not present 

in this action, nor are there "serious questions" going to the 

merits. Further, there is a lack of the likelihood of irreparable 

harm to the spebies. I find the "serious questions" test is not 

applicable, but even if it were, defendants would prevail due to, 

as discussed below: the lack of the likelihood. of irreparable harm 

to the species and the public's interest in the economic and 

environmental benefits of the project including providing jobs and 

retaining infrastructure for them, fuel reduction benefits to 

decrease the intensity and severity of future fires, and avoiding 

insect buildup that can threaten adjoining trees. 

Discussion 

I. The Effect of Barred Owls'on Spotted Owl Detectability 

Plaintiffs argue that when barred owls are present, spotted 

owls are less likely to respond to calls. Plaintiffs assert that 

FWS did not take this possibility into account and may thus have 

underestimated the number of spotted owl sites by relying on false 

"no occupancy" determinations. 

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Case 6:14-cv-01236-TC Document 23 Filed 09/23/14 Page 10 of 36
Plaintiffs argue that the FWS "entirely failed to consider an 

important aspect of the problem" or " offered an explanation 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" when it reached its No Jeopardy 

conclusion in the Douglas Fire Complex BiOp. Lands Council v. 

McNair, 629 F.3d 1070, 1074 (9th Cir. 2010). Plaintiffs contend 

that since FWS has not "considered the relevant factors and 

articulated a rational connection between the facts found and the 

choices made," its biological opinion authorizing the proposed 

action is arbitrary, capricious, and not in accordance with the 

Arrington v. Daniels, 516 F. 3d 1106, 1112 (9th Cir. 2008); 5 U.S.C. 

§ 706(2) (A); 16 U.S.C. § 1536(a) (2); 16 U.S.C. § 1536(b) (4). 

I disagree. FWS did acknowledge and account for the 

potential impact of barred owls on detectability. FWS noted that 

barred owls have been "detected in almost half of the known .spotted 

owl sites" and barred owl presence may reduce spotted owl 

detectabili ty. BiOp at 18, 23, 92; see also id. at 93 ("Monitoring 

and management of northern spotted owls has become more complicated 

due to their possible reduced detectability when barred owls are 

present.") FWS used the best available scientific information-a 

host of long term and consistent BLM surveys for the Study 

Area-which largely overlaps the action area-to determine the 

locations of spotted owls in the action area. BiOp at 20; BA, App. 

11 - ORDER 

Case 6:14-cv-01236-TC Document 23 Filed 09/23/14 Page 11 of 36
"D". FWS noted that the Study Area has been subject to a constant 

survey effort. Id. at 21; see also 12/5/13 Post Fire Treatment/ 

Sideboards Meeting Memorandum at 4 ("There is a lot of great survey 

data in this fire area since most of it is within the [Study 

Area]"). Due to the long term and consistent nature of those 

surveys, surveyors are aware of site locations and spotted owl 

movement patterns and are particularly efficient in finding hard to 

detect spotted owls in the action area. Notably, plaintiffs do not 

claim that FWS failed to rely on the best available scientific 

information in counting potentially affected sites. Nor do they 

cite any alternative site occupancy data other than the surveys on 

which FWS relied. Kandra v. United States, 145 F. Supp. 2d 1192, 

1208 (D. Or. 2001) (agencies 

have wide latitude to determine what is the best scientific and 

commercial data available and courts presume that agencies have 

used the best scientific and commercial data available unless 

those challenging the agency actions can identify relevant data not 

considered) . 

Additionally, as a precaution, FWS recommended that BLM 

continue surveys during the upcoming survey season, so as to 

continue to inform salvage project planning· as needed to further 

12.- ORDER 

Case 6:14-cv-01236-TC Document 23 Filed 09/23/14 Page 12 of 36
reduce impacts to spotted owls. BiOp at 60; see also BiOp at 41 

(BLM "is conducting surveys for spotted owls in 2014 and if spotted 

owls are found occupying these sites, the Level 1 Team will need to 

discuss appropriate ESA measures.") "[I]f new spotted owl sites are 

located during surveys, biologists will review [the project design 

criteria] and the [BiOp] to confirm the ESA analysis remains 

valid." BA at 18. As such, the record demonstrates that FWS used 

the best available scientific information to identify the location 

of spotted owls in the action area. McNair, 629 F.3d at 1074 

(courts need only ensure that FWS did not fail to consider an 

important aspect of the problem); cf. 16 U.S.C. § 1536(a) (2) ("In 

fulfilling [its obligation to consult to ensure that agency actions 

do not jeopardize ESA listed species], each agency shall use the 

best scientific and commercial data available."); Oceana, Inc. v. 

Evans, 384 F. Supp. 2d 203, 214-221 (D.D.C. 2005) ("[a]n agency's 

use of a model is arbitrary [only] if that model 'bears no rational 

relationship to the reality it purports to represent.' "); see 

generally Oceana Inc. , at 214-21. 

The court finds that the government's action is not arbitrary, 

capricious, an abuse of discretion or otherwise not in accordance 

with the law. 

13 - ORDER 

Case 6:14-cv-01236-TC Document 23 Filed 09/23/14 Page 13 of 36
II. The Effect of Wildfire on Spotted Owl Habitat Use 

Plaintiffs also argue that the best scientific information 

indicates that spotted owls expand their core areas and home ranges 

in post-fire environments in order to satisfy life cycle needs 

including roosting and foraging. 

Plaintiffs argue FWS has provided no rationale for 

disregarding the [allegedly] undisputed best scientific evidence 

on spotted owl use of habitat post-fire in its jeopardy analysis, 

indicating that it has "entirely failed to consider an important 

aspect of the problem" and "offered an explanation 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," McNair, 629 F.3d at 1074, and thus, the 

agency's conclusions are arbitrary, capricious , not based on the 

best available scientific information, and not in accordance with 

the ESA. 5 U.S.C. §706(2) (A); 16 U.S.C. §1436 (a) (2); 16 U.S.C. 

§ 1536 (b) (4). 

The record before me, however, does not support plaintiffs' 

contention. First, FWS fully considered the possibility that 

spotted owls may have shifted their core use areas and home ranges 

post-fire. BiOp at 32, 33-34, 4 0 (shifts possible in 8 of 14 

sites); 131 (studies concerning effect of fire inconclusive), 133. 

Plaintiffs have provided no evidence that any home ranges have 

expanded. FWS cautioned that "[r]esponses such as shifts in home 

14 - ORDER 

Case 6:14-cv-01236-TC Document 23 Filed 09/23/14 Page 14 of 36
ranges in some cases can be difficult to predict" but 

nevertheless identified eight sites that may have shifted. BiOp at 

40, 131. In short, contrary to plaintiffs' allegations, FWS used 

the abundant data available from the Study Area to identify, to the 

extent practicable, those sites where spotted owls may have shifted 

post-fire. 

Second, the one study plaintiffs cite, "Clark 2007", does not 

support the plaintiffs. Clark 2007 ultimately did not find profound 

differences between core-use areas or home ranges inside and 

outside of fire boundaries. See, ~' Clark 2007 at 83 ("Home 

ranges were larger following wildfire in my study, but high 

severity wildfire and salvage logging were not important variables 

influencing home ranges as initially predicted."). Moreover, the 

home ranges and core-use areas used in the Clark study were 

actually smaller than those used by FWS. Clark 2007 at 75 (Table 

showing the Clark used a 618 hectare (1527 acres) Mean (All Owls) 

home range size, versus FWS's 1.3 mile (3,398 acre) home range, and 

Clark used a 50 hectare (123 acres) Mean (All Owls) core-use area 

size, versus FWS's 0.5 mile (500 acres) core-use area circle. In 

other words, FWS used home range circles that were twice as large, 

and core-use area circles that were four times larger than those 

used by Clark in his 2007 study. FWS' s methodology therefore 

provides an appropriate basis upon which to evaluate habitat 

conditions for potential shifts by spotted owls. Notably, 

15 - ORDER 

Case 6:14-cv-01236-TC Document 23 Filed 09/23/14 Page 15 of 36
plaintiffs do not propose any alternative home range or core-use 

area circle size that they believe FWS should have used. FWS's use 

of a 1.3 mile home range and 0.5 mile core-use area was 

reasonable. Oceana, Inc. v. Evans, 384 F. Supp. 2d 203, 214-221 

(D.D.C. 2005) ("[a]n agency's use of a model is arbitrary [only] if 

that model 'bears no rational relationship to the reality it 

purports to represent' ".) 

Nor do the two other documents that plaintiffs cite help them. 

The first, a June 2014 email from Robin Snider, a BLM official, to 

two FWS officials, Jim Thrailkill and Cindy Donegan, is irrelevant. 

It suggests that a single spotted owl movement from one site to 

another due to the presence of a barred owl-not the Douglas fires. 

The email is not evidence that any spotted owls are expanding or 

shifting their core-use areas or home ranges as a result of the 

Douglas Complex fires. In any event, FWS tracked the owl that Ms. 

Snider was referring to and was aware of and accounted for its 

movement. The second, a December 5, 2013, internal FWS memorandum, 

makes the unremarkable suggestion that some owls may move due to 

new conditions created by the Douglas Complex fires. 12/5/13 

Memorandum at 3-4 (located in the "Other" folder of the partial 

AR). FWS anticipated and took such potential shifts into account. 

First, FWS did so by using a 1.3 mile radius home range and 0.5 

mile core-use area size estimates, as discussed above. Second, as 

mentioned above, the action area has been subject to long term, 

16 - ORDER 

Case 6:14-cv-01236-TC Document 23 Filed 09/23/14 Page 16 of 36
intensive spotted owl demographic study. FWS was therefore able to 

evaluate previous spotted owl response and movement areas along 

with remaining habitat post-fire to consider potential shifts. BiOp 

at 3 9 (showing ability of FWS to track color banded owls at 

numerous sites). Indeed, using this intensive data, FWS was able to 

specifically identify spotted owls at 8 of 14 sites that could 

potentially shift. BiOp at 40 (shifts possible in 8 of 14 sites); 

see also BA at 23 ("These shifts are especially evident in this 

project area because individual owls have been banded with unique 

color combinations. In many cases, the survey crew has been able to 

identify the same pair of owls using multiple nest locations in 

alternate years and therefore establishing the potential 

territory.") 

Accordingly, the record demonstrates that FWS adequately and 

lawfully accounted for the effect of wildfire on spotted owl site 

locations, and that the government's action is not arbitrary , 

capricious, an abuse of discretion or otherwise not in accordance 

with the law. 

III. The Assessment of the Effects of All Potentially Affected 

Owl Sites 

Plaintiffs argue that the FWS failed to comply with the ESA 

when it: 1)did not assess the effects of the proposed action on 6 

known spotted owl sites that overlap the planning area, but do not 

17 - ORDER 

Case 6:14-cv-01236-TC Document 23 Filed 09/23/14 Page 17 of 36
overlap the salvage units; 2) did not explain why it used two 

different methods for assessing effects to the species; and 3) 

inconsistently applied its effects analysis methodologies to the 

facts before it. 

Plaintiffs contend that while FWS is permitted to use 

methodologies to assess the effects to listed species from a 

proposed action, the agency must employ those methodologies in a 

reasoned and not arbitrary manner. Plaintiffs argue that the FWS, 

however, has used the NLAA and LAA unequally, arriving at 

fallacious conclusions about the effects of the Douglas Fire 

Complex project that are simply not supported by the facts. As the 

Ninth Circuit in McNair held, a decision is arbitrary and 

capricious if the agency "offered an explanation 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." McNair, 629 F.3d at 1074. Plaintiffs conclude 

that the FWS Douglas Fire Complex BiOp is therefore arbitrary, 

capricious, and not in accordance 

§706(2)(A); 16 U.S.C. §1436 (a)(2); 

U.S.C. §§1536(a) (2), 1536(b) (4). 

with the ESA. 5 U.S.C. 

50 C.F.R. §402.14(1); 16 

Again, I reject plaintiffs' arguments. Under the ESA, 

consultation is required when a federal action "may affect" a 

listed species. 50 C.F.R. § 402.14 ("Each Federal agency shall 

review its actions at the earliest possible time to determine 

18 - ORDER 

Case 6:14-cv-01236-TC Document 23 Filed 09/23/14 Page 18 of 36
whether any action may affect listed species "). For 

management activities potentially impacting territorial organisms 

such as spotted owls, FWS analyzes an area corresponding to the 

movements and activity patterns of individual spotted owls 

occupying a given territory. BiOp at 26-28. To evaluate spotted owl 

use of an area and habitat and human impacts, FWS conducts its 

assessment at the two areas around the spotted owl nest: 

the home range and core use areas. Id. at 26. Here, BLM 

appropriately defined the action area to encompass all lands within 

any provincial home ranges of known spotted owl sites that could be 

directly, indirectly or cumulatively impacted by the proposed 

action. BA at 18. BLM explained that of the 45 historical nest 

sites located within the action area, only 39 would be subject to 

any salvage treatment or road or landing construction within their 

home ranges. BA at 37. In other words, while the home ranges 

of six sites overlapped with portions of the action area, none of 

them could possibly be affected by the habitat modifications 

planned as part of the Project. BA at 37; BiOp at 36, 41; cf. 50 

C.F.R. § 402.02 (Action Area defined as "all areas to be affected 

directly or indirectly by the federal action and not merely the 

immediate area involved in the action"). Plaintiffs do not suggest 

otherwise. In sum, FWS reasonably and appropriately analyzed all 

39 spotted owl nest sites that the Project "may" effect and there 

was no need for any further analysis. 50 C.F.R. § 402.14. 

19 - ORDER 

Case 6:14-cv-01236-TC Document 23 Filed 09/23/14 Page 19 of 36
Plaintiffs claim that the BiOp incorrectly determined that 

owl site numbers 2016A, 2080A/C, 39280, and 4690A/C would exhibit 

40% NRF coverage at the home range and 50% NRF coverage at the 

core-use area scale. Plaintiffs therefore assert that the BiOp 

inappropriately concluded that the timber operations would not 

adversely affect these sites. However, Plaintiffs' assertions are 

premised on incorrect readings of the facts and the law. 

Plaintiffs seek to convert what are essentially guidelines 

into non-existent "thresholds." FWS commonly evaluates projects 

with the potential to modify habitat on the basis, among other 

things, of how much habitat lies within a spotted owl home range 

and core-use area. The evaluation is "generally" based on whether 

a home range has 40 percent NRF habitat and a core-use area has 50 

percent NRF habitat. BiOp at 26-30. The 40- 50% figures, however, 

represent mere estimates. BA at 36 (local conditions and possibly 

pair experience, contribute to large variance in actual amounts of 

older forest within the core-use area necessary for reproduction 

and survival for individual owls) ; BiOp at 32 ("best available 

information suggests that a single threshold value for determining 

post-fire occupancy of burned areas by spotted owls is difficult to 

ascertain"); id. at 42 (BiOp stating that post-project NRF habitat 

levels are "generally" near 40 and 50 percent at the home range and 

core-use scales, respectively). FWS uses these estimates to 

20 - ORDER 

Case 6:14-cv-01236-TC Document 23 Filed 09/23/14 Page 20 of 36
evaluate potential adverse effects and take. Plaintiffs' argument 

is thus based on a misreading of FWS's methodology. 

Plaintiffs also err in failing to consider the larger context 

of FWS's analysis. FWS takes a host of other site-specific factors 

into account beyond the amount of NRF habitat remaining at a given 

site. BiOp at 26-30, 35-36. Spotted owl habitat use is driven by a 

complex mix of habitat conditions. BiOp at 30 (FWS recognizing that 

"many different combinations of forest habitat structure and amount 

at various spatial scales may support viable owl territories ... ) 

Pertinent site specific circumstances included the post-fire 

condition of NRF habitat, the amount of PFF habitat remaining or 

planned for removal and its proximity to NRF habitat, spotted owl 

site occupancy in the action area, and abiotic factors such as the 

slope position of proposed harvest units. BiOp at 132. In addition, 

FWS assesses an area's relative habitat suitability ("RHS") to help 

inform the likelihood of spotted owl occupancy and/or potential use 

of an area. BiOp at 37; USDI FWS 2011 Revised Northern Spotted Owl 

Recovery Plan, App. "C" at C42, C56. In some areas, RHS was 

determined to be low for certain areas pre-fire. BA at 49-52 (Table 

16) . Spotted owls typically avoid such areas during breeding 

periods. 2011 Revised Northern Spotted Owl Recovery Plan at 56. FWS 

carefully and appropriately deployed this methodology here. For 

example, the core-use area for site 2016A is relatively intact. BA 

at 26. The pre- and post-fire core use percentages of NRF habitat 

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Case 6:14-cv-01236-TC Document 23 Filed 09/23/14 Page 21 of 36
were above 50%, at 65%. BA at 26. In the BLM Medford District more 

generally, BLM has observed high occupancy and reproduction rates 

when only 35 percent NRF habitat exists in core-use areas. BA at 

24. 

FWS correctly determined that the large amount of core use 

area habitat available at this site would likely support a 

relatively higher level of site occupancy and habitat-fitness 

potential. Id.; see also Dugger et al. 2005; FWS 2009; Olson et al. 

2004; Bart and Forsman 1992. This also diminished the relative 

importance of the home range condition. Id. Separately, BLM had 

proposed no NRF or PFF for removal at the core-use area scale. BA 

at 50. Additionally, the post-fire home range area will remain at 

30% NRF coverage. BA at 50. It declined only 2% post-fire. BA at 

26. And, while BLM proposed some PFF harvest within the home range, 

that treatment would take place near the home range's outer 

perimeter. BA at 50; BiOp at 42. The areas proposed for salvage 

treatment were of a low relative habitat suitability pre-fire. BA 

at 50; BiOp at 42. Taking these factors into account, FWS logically 

determined that the Project is not likely to adversely affect Site 

2016A. 

Similarly, in the aggregate, Site Number 2080A/C contains 

approximately 45 percent core-use area NRF habitat. BA at 2 6. 

Intact and contiguous habitat is still present in the core-use 

22 - ORDER 

Case 6:14-cv-01236-TC Document 23 Filed 09/23/14 Page 22 of 36
area. Id. About one acre of PFF habitat is proposed for removal in 

the core-use area and represents less than one percent of the 

available NRF and PFF habitat available in the core-use area. BA at 

51. At the home range scale, in the aggregate, 34 percent NRF 

habitat is avail~ble. BA at 26. 23 acres of PFF is proposed for 

harvest in the core and home range scale, but this represents less 

than two percent of available NRF and PFF habitat at this site. Id. 

at 51. In short, the record fully supports FWS's concurrence with 

BLM's ~not likely to adversely affect" determination for this site. 

FWS consistently applied this same methodology to site number 

4690A/O. At the core use area scale, in the aggregate this site 

exhibits 47% NRF habitat. BA at 26. No NRF or PFF is proposed for 

removal in the core-use area of this site. BA at 51. At the home 

range scale, the aggregate NRF coverage approximates 40% NRF 

habitat. BLM proposed to remove up to 34 acres of PFF. However, 

this would take place near the outer perimeter of the site's home 

range in low RHS habitat. FWS's NLAA conclusion for Site 46909A/O 

was therefore entirely reasonable. 

Finally, plaintiffs are simply incorrect in suggesting that 

site 39280 does not exhibit 40% NRF coverage at the home range or 

50% NRF coverage at the core-use area range. (Plaintiffs claiming 

that Site Number 39280 is ~deficient in NRF habitat at the home 

range, core, or both levels") . The record demonstrates this site is 

23 - ORDER 

Case 6:14-cv-01236-TC Document 23 Filed 09/23/14 Page 23 of 36
at 59% home range and 69% core-use area NRF coverage, respectively. 

BA at 26. 

As such, the FWS' s concurrence with BLM' s Not Likely to 

Adversely Affect determination for each of the four sites was 

appropriate. 

Next, Plaintiffs claim that FWS inaccurately determined that 

three sites-09190, 0377B and 1911C-are unoccupied by spotted owls. 

Plaintiffs allege that in 2011 a single spotted owl was found at 

site 09190, and a spotted owl pair at site 1911C. Plaintiffs' 

arguments, however, are not supported by the record. Site number 

09190 has a long history of surveys showing the site as being 

unoccupied. BA at 50 ("site has not been occupied in 21 years. Last 

pair was in 1983."); see also BA App. "C", Medford Douglas NSO RA 

10 Site Priority Summary (documenting 21 years of surveys); BA App. 

"D" at 11 (site unoccupied). Additionally, the nest patch and 

core-use area of the site were severely burned in 2013 and 

salvage logging occurred at a separate, adjacent site. BA at 26 

(only 19% and 5% NRF habitat remains post-fire in home range and 

core-use area) . Taking all of these factors into account, FWS 

reasonably concluded that Site 09190 is unoccupied. 

Similarly, Site Number 1911C was unoccupied in 2012 and 2013. 

BA App. "D" at 6 (site unoccupied). Moreover, as with site 09190, 

the nest patch, core-use area and home range each experienced at 

least a moderate to high severity burn in over 30 percent of its 

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Case 6:14-cv-01236-TC Document 23 Filed 09/23/14 Page 24 of 36
acreage. BA at App. ~c," Burn Severity at NSO Sites by Home Range, 

Core, and Nest Patch Scales. As a result, only 16 percent of NRF 

habitat remains at the home range and core use areas. BA at 26. 

Taking all of these factors into account, FWS logically determined 

that Site Number 1911C is unoccupied. BiOp at 32 (FWS concluded 

site would be a loss due to post-fire conditions having little NRF 

at core and home range scales), 42 (same). 

As to Site Number 0377B, Plaintiffs suggest that FWS made an 

error in its reasoning for the NLAA determination for site 0377B. 

The BiOp, however, fully explained its NLAA determination. As 

plaintiffs note, site 0377B was inadvertently listed twice in the 

BiOp' s explanation of NLAA findings, under both the second and 

fourth factors. They take issue with the fact that it was listed 

under the second factor, but do not contest that it was 

appropriately considered under the fourth factor. BiOp at 42-43. 

The fourth factor stated that an NLAA finding is appropriate where 

the amount of PFF proposed for removal is minimal at the core use 

area; a minor amount of PFF removal may occur in the outer 

perimeter of the home range and in relatively low habitat 

suitability areas. BiOp at 43. FWS's finding that effects to site 

0337B are not likely to adversely affect the species is fully 

consistent with the record. The BA indicated that (a) only 0.1 acre 

of PFF would be removed; (b) the area proposed for harvest is on 

the outer edge of the home range and in a low RHS area; and (c) the 

25 - ORDER 

Case 6:14-cv-01236-TC Document 23 Filed 09/23/14 Page 25 of 36
majority of the home range is outside of areas affected by the 

fire. BA at 50. The listing of site 0377B additionally under the 

second factor may have.been the result of a typographical error. In 

any event, the BiOp .explains FWS' s reasoning based on the fourth 

factor, and FWS's concurrence with ELM's NLAA conclusion is 

supported by the record. Buschmann v. Schweiker, 676 F.2d 352, 358 

(9th Cir. 1982) (an error is harmless where mistake clearly had no 

bearing on the substance of the decision reached). In short, FWS's 

analysis of Site Numbers of 09190, 0377B, and 1911C was entirely 

rational. 

Plaintiffs next contend that, contrary to FWS's determinations, 

three sites are occupied. First, plaintiffs contend that at site 

numbers 19130 and 46070, respectively, a single owl was found in 

2011 and a single or pair of owls were located in 2010. Dkt. 13 at 

21, n.6 (nThese sites are: 19130 (2011 single owl) .").As to 

site number 19130, the record does not support plaintiffs' claim 

that an owl was sighted in 2011. BA at App. no". Mbreover, this 

argument misses the mark because in FWS' s expert judgment, the 

relevant guideline was a lack of occupancy within the npast 2 or 3 

years", i.e., since 2012, not 2011. BiOp at 42. Similarly, as 

for site number 46070, the record clearly demonstrates that there 

have been no sightings in the last six years. BA, App. nc": Medford 

Douglas NSO RA 10 Site Priority Summary (noting nred lettering = no 

resident owls in the last 6 years"); see also id. at 50 (noting for 

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Case 6:14-cv-01236-TC Document 23 Filed 09/23/14 Page 26 of 36
site number 46070 ~No pair responses in 21 years and no responses 

in last 6 years"); BA, App. "D": Medford Douglas Action Area - NSO 

Site History, at 10. 

Plaintiffs also allege that the Project will remove more than 

"minimal" PFF at Site Numbers 4534A/O and 4575A/O and that FWS's 

not likely to adversely affect determination was arbitrary and 

capricious. The court rejects plaintiffs' argument, however, 

because it amounts to a request that the court substitute 

plaintiffs' definition of "minimal" for the one that FWS employed. 

The Court instead defers to FWS's expert scientific judgment on 

what amount of PFF removal is "minimal." Klamath-Siskiyou Wildlands 

Ctr. v. Bureau of Land Mgrnt., 387 F.3d 989, 993 (9th Cir. 2004) 

(" [C] ourts must also be mindful to defer to agency expertise, 

particularly with respect to scientific matters within the purview 

of the agency"). 

Additionally, contrary to plaintiffs' contention, the role of 

PFF habitat cannot be evaluated in isolation. Rather, PFF habitat 

should be viewed in the context of, inter alia, its amount and 

spatial relationship to remaining NRF habitat. For example, as to 

Site 4334A, the BA noted that a total of 44 acres of PFF acres 

would be removed in the horne range, but that the areas impacted are 

in low RHS habitat. BA at 51. Only 0.7 acre of the total PFF acres 

would be removed at the core-use area, and only 0.1 acres at site 

area 4534A, "where the most recent activity has been" observed. 

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Case 6:14-cv-01236-TC Document 23 Filed 09/23/14 Page 27 of 36
Id.; see also BA, App. "C": Habitat Treatment Acres by Home Range, 

Core, and Nest Patch and App. "C": NSO Site Effects (Post-Fire 

NRF /PFF amounts and Post-Treatment NRF /PFF amounts) (noting de 

minimus reduction on PFF+NRF habitat post-treatment). 

Similarly, for Site Number 4575A/O, the record shows that only 

25.5 total PFF acres would be removed in the home range and none 

would be removed in the core-use area. BA at 51. Moreover, the 

majority of treated areas are in low RHS, and the core-use area 

will remain intact with contiguous NRF. Id. 

In sum, FWS correctly concluded that the proposed PFF removals 

were "minimal" and that the Project was not likely to adversely 

affect spotted owls at those sites. 

Plaintiffs next contend that FWS inconsistently applied its 

methodology for deciding when "take" had occurred at a given owl 

site. Plaintiffs argue that in one case, where six acres of NRF 

habitat will be removed from site number 26640, FWS made a "no 

take" determination, but for site number 46040, where only 4 acres 

of NRF habitat would be removed, FWS made a "take" determination. 

However, as FWS explained, to determine if habitat removal likely 

to be caused by a proposed Federal action is also likely to 

significantly disrupt the breeding, feeding, or sheltering behavior 

of the spotted owl to the extent that it actually injures or kills 

affected spotted owls (i.e., "take" spotted owls), there must be a 

reasonable certainty that the spotted owl occupies the affected 

28 - ORDER 

Case 6:14-cv-01236-TC Document 23 Filed 09/23/14 Page 28 of 36
habitat area. BiOp at 40. Plaintiffs neglect to mention that FWS 

determined that owls are not likely to occupy Site 26640 because of 

post-fire conditions, but were likely to occupy Site 46040. Id. FWS 

clearly stated: 

Id. 

Four spotted owl sites (2664 are not 

anticipated to be occupied post-fire because 

2012 and 2013 surveys and/or long-term 

pre-fire surveys indicate that these sites are 

not occupied by spotted owls and/or as having 

an overall low probability of occupancy. 

Again, the government's action is not arbitrary, capricious, 

an abuse of discretion or otherwise not in accordance with the law. 

IV. Revised Recovery Plan for the Northern Spotted Owl 

Plaintiffs also make several contentions regarding the 2011 

Recovery Plan Actions 10 and 12. 

In 2011, FWS completed the Revised Recovery Plan for the 

Northern Spotted Owl (NSO Recovery Plan) . The Oregon Klamath 

Province, where the Douglas Complex Fire Recovery Project is 

located, is designated as a Recovery Unit for the spotted owl 

populations that inhabit it. NSO Recovery Plan, III-1. "The 

intended function of this Recovery Unit is to support high quality 

spotted owl NRF and dispersal habitats." BiOp, 24. According to 

FWS, "'Recovery Actions' are near-term recommendations to guide the 

activities needed to accomplish the recovery objectives and achieve 

29 - ORDER 

Case 6:14-cv-01236-TC Document 23 Filed 09/23/14 Page 29 of 36
the recovery criteria," such that a species may be delisted from 

ESA protection. NSO Recovery Plan, x. 

Recovery Action 10 (RA 10) directs federal agencies to: 

"Conserve spotted owl sites and high value spotted owl habitat to 

provide additional demographic support to the spotted owl 

population. The intent of this recovery action is to protect, 

enhance and develop habitat in the quantity and distribution 

necessary to provide for the long-term recovery of spotted owls." 

NSO Recovery Plan, III-44. The NSO Recovery Plan states "this 

recommendation includes currently occupied as well as historically 

occupied sites (collectively "spotted owl sites," see Appendix G: 

Glossary of Terms)." Id. at III-42. The NSO Recovery Plan defines 

"spotted owl sites" as "an occupied spotted owl site or a spotted 

owl site where spotted owls were documented to be 

present in the past." Id. at G-2. 

NSO Recovery Plan Recovery Action 12 (RA 12) directs: "In lands 

where management is focused on development of spotted owl habitat, 

post-fire silvicultural activities should concentrate on conserving 

and restoring habitat elements that take a long time to develop 

(e.g., large trees, medium and large snags, downed wood)." Id. at 

III-49 (emphasis added). Post-fire logging particularly targets 

medium and large fire-killed trees (snags) for removal. BiOp 11. 

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Case 6:14-cv-01236-TC Document 23 Filed 09/23/14 Page 30 of 36
Action 10 suggests that, where possible 7 , spotted owl sites 

and high value spotted owl habitat should be conserved. Action 12 

urges agencies to focus post-fire activities on conserving and 

restoring habitat elements that take a long time to develop, e.g., 

large trees, medium and large snags, and downed wood. 

As a threshold matter, plaintiffs' argument fails because 

recovery plans do not have the force of law and plaintiffs conceded 

such at oral argument. Friends of Blackwater v. Salazar ,691 F.3d 

42 8, 4 32-3 4 (D.C. Cir. 2 012) ; Fund for Animals v. Rice, 8 5 F. 3d 

535, 547 (11th Cir. 1996) ("By providing general guidance as to 

what is required in a recovery plan, the ESA 'breathes discretion 

at every pore.' ") (quoting Strickland v. Morton, 519 F. 2d 4 67, 4 69 

(9th Cir. 1975)); see also California Native Plant Soc'y v. U.S. 

E.P.A., No. 06-03604, 2007 WL 2021796, at *21 (N.D. Cal. July 10, 

2007); Conservation Northwest v. Kempthorne, No. 04-1331, 2007 WL 

1847143, n.2 (W.O. Wash. June 25, 2007); Biodiversity Legal 

Foundation v. Norton, 285 F. Supp. 2d 1, 14 (D.D.C. 2003) ("BLF") 

(" [ t] he Court is generally persuaded by the Eleventh Circuit's 

reasoning in [Rice], and agrees that the ... Recovery Plan was merely 

a guideline, which FWS had discretion to follow.") ; National 

Wildlife Fed'n v. National Park Service, 669 F. Supp. 384, 388 (D. 

Wyo. 1987) ("Plaintiffs would urge upon this Court that the 

7

The ESA describes the prototype recovery plan, subject to a 

reasonableness standard of "the maximum extent practicable," in § 

1533 (f) (1) (B). 

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Case 6:14-cv-01236-TC Document 23 Filed 09/23/14 Page 31 of 36
language§ 1533(f) obligates the Secretary to develop and implement 

a recovery plan, and that, once developed, all concerned agencies 

must adhere to it .. The language does not so say."); but see S.W. 

Center for Biological Diversity v. Bartel, 470 F. Supp. 2d 1118 

(S.D. Cal. 2006). They are not binding on federal agencies. 

Indeed, plaintiffs are attempting to compare apples to oranges. 

Under the ESA, FWS's jeopardy analysis considers whether a specific 

action is reasonably likely to appreciably reduce the likelihood of 

both survival and recovery of a listed species. 50 C.F.R. § 402.02. 

Recovery, on the other hand, is the "improvement in the status of 

listed species to the point at which listing is no longer 

appropriate . " Id. The jeopardy analysis-which FWS makes 

rangewide, in Washington, Oregon, and northern California-is 

concerned with whether a given federal action at the species level 

would appreciably reduce the likelihood of recovery, not whether 

that federal action would itself implement or bring about recovery. 

The court rejects plaintiffs' invitation to blur the two separate 

and distinct concepts of jeopardy and recovery. 

In any event, the BiOp is consistent with Recovery Actions 10 

and 12. Recovery Action 10 states agencies should attempt, where 

possible, to "[c]onserve spotted owl sites and high value spotted 

owl habitat to provide additional demographic support to the 

spotted owl population." BiOp at 10, 14. To do so, BLM and FWS 

32 - ORDER 

Case 6:14-cv-01236-TC Document 23 Filed 09/23/14 Page 32 of 36
ranked the 39 affected known spotted owl sites in the action area 

using (a) the duration of spotted owl occupancy and successful 

reproduction at each site and 

BiOp at 47; see also id. at 10, 

(b) post-fire habitat conditions. 

14, 24, 47. This ranking enabled 

the agencies to identify up to 12 sites that warranted additional 

consideration for conservation measures. BiOp at 14, 47, 60, App. 

"C". For the top tier of identified sites, BLM avoided and 

minimized Project impacts by excluding over 800 acres of PFF 

habitat from salvage activities in core-use areas and Known Spotted 

Owl Centers.8 BiOp at 47. BLM also avoided and/or minimized road 

and landing construction and other similar activities within the 

high priority spotted owl site core-use areas. BiOp at 4 4 ("The 

proposed salvage harvest, to the extent practical, will avoid 

spotted owl nest patch and core-use areas."). 

BLM focused its salvage efforts on spotted owl sites with 

demonstrated non-occupancy for several years prior to the fire. Id. 

As a result, BLM minimized potential adverse effects to spotted 

owls from the proposed action. Id. All of these actions were 

consistent with Recovery Action 10. 

Similarly, the BiOp is consistent with Recovery Action 12. 

BiOp at 14 ("Recovery Action 12 is also applicable to this 

Project.") . Recovery Action 12 states that " [ i] n lands where 

management is focused on development of spotted owl habitat, 

33 - ORDER 

Case 6:14-cv-01236-TC Document 23 Filed 09/23/14 Page 33 of 36
post-fire silvicultural activities should concentrate on conserving 

and restoring habitat elements that take a long time to develop 

(e.g., large trees, medium and large snags, downed wood)." BiOp at 

14. 

FWS discussed and implemented this guideline. Within the fire 

perimeter, approximately 7 5 percent of fire area burned at low 

severity. BLM excluded any the acres subject to low severity fire 

in the areas subject to salvage treatment. This left a large 

portion of the action area landscape with both burned and green 

legacy features (e.g., snags, down wood and a mosaic of habitat 

features) important to the spotted owl now and for future stands of 

NRF habitat. On the other hand, approximately 25 percent of the 

area (approximately 5,000 acres) within the fire perimeter burned 

at medium to high severity. Within this smaller area, only eight 

percent (1,612 acres) are subject to harvest. Because a relatively 

small portion of the area is proposed for harvest, and project 

design criteria provide for snags and downwood in the salvage 

areas, both green tree and burned legacy features important to 

spotted owls both in the short and long-term will be provided and 

broadly distributed across the action area. 

Moreover, FWS and BLM took special snag related precautions in 

those areas subject to harvest. The applicable BLM Resource 

Management Plan includes snag retention requirements to retain 

legacy features for spotted owls and in doing so, helps ensure 

34 - ORDER 

Case 6:14-cv-01236-TC Document 23 Filed 09/23/14 Page 34 of 36
consistency with Recovery Action 12. Record of Decision for the 

Medford District Resource Management Plan ( "RMP") at 21 ("The 

general forest management area and connectivity/diversity blocks 

will be managed to retain late-successional forest legacies (e.g., 

snags, ) ") , 33, 3 9 ("Retain snags and green trees 

within a timber harvest unit at levels sufficient to support 

species of cavity nesting birds at 40 percent of potential 

population levels.") (found at BiOp App. Lit Cite A folder, Partial 

AR) . While the RMP does not specify the number of snags that must 

be required, it did require BLM to retain enough snags to support 

cavity nesting birds at 40 percent of the potential population 

levels. Id. at 39. This would equate to 0.2 hard snags per acre for 

hard snag woodpecker users in Douglas-fir forests and 1 soft snag 

for soft snag users. 

For the Project, however, BLM left 2-4 hard snags per acre on 

the landscape - up to five times more than the amount required by 

the RMP. BiOp at 47 ("Project will provide for a higher retention 

of snags (up to 5 times more) and coarse woody debris within 

spotted owl critical habitat and 0.5 mile core-use areas of high 

priority sites as compared to [BLM' s] 1995 RMP standards for 

Matirix lands which is the underlying [land use allocation]' of the 

area ) . The Project is therefore consistent with Action 12. 

35 - ORDER 

Case 6:14-cv-01236-TC Document 23 Filed 09/23/14 Page 35 of 36
As with the other issues presented by plaintiffs, I find the 

government's action is not arbitrary , capricious, an abuse of 

discretion or otherwise not in accordance with the law. 

CONCLUSION 

For the reasons stated above, plaintiffs' motion (#13) for a 

preliminary injunction is denied. 

DATED this 

strate Judge 

36 - ORDER 

Case 6:14-cv-01236-TC Document 23 Filed 09/23/14 Page 36 of 36