IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

FRIENDS OF ANIMALS, and 

PREDATOR DEFENSE, 

Plaintiffs, 

v. 

U.S. FISH AND WILDLIFE 

SERVICE, 

Defendant, 

Jennifer Barnes 

Michael Ray Harris 

Friends Qf Animals 

Western Region Office 

7500 E. Arapahoe Road, Suite 385 

Denver, Colorado 80112 

David A. Bahr 

Bahr Law Offices 

1035 1/2 Monroe Street 

Eugene, Oregon 97402 

Attorneys for plaintiffs 

Billy J. Williams 

Coby Healy Howell 

U.S. Department of Justice 

Case No. 6:14-cv-01449-AA 

OPINION AND ORDER 

Environment and Natural Resources Division 

1000 SW Third Avenue, Suite 600 

Portland, Oregon 97204 

Attorneys for defendant 

Page 1 - OPINION AND ORDER 

Case 6:14-cv-01449-AA Document 29 Filed 07/16/15 Page 1 of 28
AIKEN, Chief Judge: 

Plaintiffs Friends of Animals and Predator Defense move for 

summary j udgtnent pursuant to Fed. R. Ci v. P. 56. Defendant U.S. 

Fish and Wildlife Service ("FWS") filed a cross-motion for summary 

judgment. For the reasons set forth below, plaintiffs' motion is 

denied and FWS' motion is granted. This case is dismissed. 

BACKGROUND 

This case surrounds a conflict of two species - the northern 

spotted owl ("NSO") and the barred owl and, by extension, FWS' 

decision to issue a permit under the Migratory Bird Treaty Act 

("MBTA") authorizing the take of approximately 3,600 barred owls, 

over a four year period and within a confined geographical region, 

to address declining NSO populations. 

NSOs are secretive, mostly nocturnal, monogamous, long-lived, 

and tend to mate for life; however, pairs usually do not nest every 

year and nesting pairs are not successful every year. 55 Fed. Reg. 

26,114 (June 26, 1990). Although the present range of the NSO spans 

from southwestern British Columbia through the coastal range of 

northwestern California, the majority of the current population is 

found in the old-growth and mature forest habitats of the Oregon 

Cascades and the ·Klamath Mountains in southwestern Oregon and 

northwestern California. Id. at 26,114-15. 

The barred owl, while native to eastern North America, 

expanded its range to western North America over the past century. 

Administrative Record ("AR") 34764. In other words, the range of 

the barred owl now completely overlaps that of the NSO; due to a 

Page 2 - OPINION AND ORDER 

Case 6:14-cv-01449-AA Document 29 Filed 07/16/15 Page 2 of 28
dramatic increase in the number of barred owls over the past few 

decades, they regularly outnumber NSOs in shared habitat. AR 00013, 

00119, 34764-65. The diets of these two species also overlap, by as 

much as 76% in some regions, but barred owls are "able to eat a 

much wider variety of food than spotted owls." AR 00135, 34764-65. 

While, similar to NSOs, barred owls prefer old-growth forest and 

older forest habitat, they are generally far more adaptable. AR 

34764-65. Barred owls have an aggressive nature and have been known 

to attack NSOs. 55 Fed. Reg. at 2 6, 191; AR 34 7 64. Because the 

barred owl competes with the NSO for the same habitat and food, the 

NSO is typically forced out of such shared habitat resulting in 

decreased survival. AR 00013, 00119, 00135. 

The NSO was listed as "threatened" under the Environmental 

Species Act ("ESA") in 1990. 55 Fed. Reg. at 26,114. As such, FWS 

was required to develop a recovery plan geared towards improving 

NSO conservation and survival. 16 U.S.C. § 1533(f). An initial plan 

was drafted in 1992, amended in 2008, 1 and ultimately superceded in 

by the current version in 2011 ("2011 Recovery Plan"). AR 34624-

900. Along with past and current habitat degradation due to timber 

harvest and natural catastrophic events, the 2011 Recovery Plan 

identified increased competition from barred owls as one of the 

three primary threats to the NSO and required immediate 

consideration, as information garnered since the 1990 listing 

revealed that barred owls posed a significant and immediate danger 

1 Both the 2008 and 2011 plans retained the same language 

relative to the barred owl threat. AR 34642, 34704. 

Page 3 - OPINION AND ORDER 

Case 6:14-cv-01449-AA Document 29 Filed 07/16/15 Page 3 of 28
to the NSO throughout its range. AR 34648, 34704, 34724, 34764-66; 

55 Fed. Reg. at 26,173. 

Ultimately, FWS identified 33 specific Recovery Actions in the 

2011 Recovery Plan. AR 34635. One of these, Recovery Action 29, 

involved the design and implementation of "large-scale control 

experiments to assess the effects of barred owl removal on Spotted 

Owl site occupancy, reproduction, and survival." AR 34727. The 2011 

Recovery Plan recognized the rapid and severe threat from barred 

owls on NSOs and therefore recommended that Recovery Action 29 be 

initiated as soon as possible in the form of well-designed removal 

experiments. Id. According to FWS, these experiments "have the 

potential to substantially expand [the agency's] knowledge of the 

ecological interactions between spotted owls and barred owls," and 

would be designed to provide the "most useful scientific 

information." Id. 

Due to the potentially controversial nature of Recovery Action 

29, FWS convened a stakeholder group and employed a bio-ethicist to 

inform the process of developing the removal study proposal. AR 

00737, 01047. Individuals were invited to share their respective 

views on FWS' proposal and FWS provided educational meetings to 

explore relevant possibilities. Id. In December 2009, FWS published 

notice to prepare an environmental impact statement ( "EIS") to 

explore various alternatives and identify significant issues. AR 

00738. The public comment period ran until January 2010; "a total 

of 54 written comment letters, memos, and emails from 54 individual 

submitters" were received. AR 00738, 01049. In addition, FWS 

Page 4 - OPINION AND ORDER 

Case 6:14-cv-01449-AA Document 29 Filed 07/16/15 Page 4 of 28
conducted several meetings, conference calls, and discussions with 

other federal agencies that would be involved in the proposed 

study. Id. Information gleaned from this process was then used to 

formulate a draft EIS. AR 00715-17. 

In July 2013, FWS issued the final EIS. AR 00096-600. It 

evaluated certain cumulative impacts, as well as nine different 

alternatives, which primarily varied by experimental methods, 

including the number and distribution of study areas, the type of 

study, and the method of removal. AR 00125-26, 00143-79, 00372. 

Because the population of barred owls is robust, FWS concluded that 

the study would not affect the viability of this species. AR 00129-

30, 00257-75. FWS also found that, without continued management, 

which was not reasonably foreseeable, barred owls would recover to 

pre-removal study numbers within three to five years after the 

study was complete. AR 00138, 00372. 

The final EIS similarly examined the effects of this removal 

study on NSOs. AR 00131. On-going demographic studies demonstrated 

a 2.9% decline in NSO populations per year since 1990. AR 00276. 

Moreover, the proportion of NSO sites occupied by barred owls in 

some study areas increased from less than 5% in 1990 to 70% in 

2008, and the rate of recruitment of new NSOs into these areas was 

negatively correlated with the presence of barred owls. AR 00277. 

FWS hypothesized that NSO site occupancy, survival, and 

reproduction would likely increase on the treatment areas following 

barred owl removal, resulting in beneficial effects to this 

threatened species for the duration of the study. AR 00281. 

Page 5 - OPINION AND ORDER 

Case 6:14-cv-01449-AA Document 29 Filed 07/16/15 Page 5 of 28
In September 2013, FWS issued its record of decision ("ROD") 

regarding the selected preferred alternative, explaining that "it 

would provide for a strong, scientifically-credible experiment with 

a high power to detect the effect of the barred owl removal on 

spotted owl populations, and provide results across the range of 

the spotted owl in a timely manner," especially ln light of the 

fact that the effect of proposed action on the barred owl 

population would be "negligible." AR 00012-24. The Forest Service 

and the National Park Service ultimately supported the removal 

study. AR 02787, 14414, 14454. 

Based on the final EIS and ROD, FWS submitted an application 

for a scientific collecting permit to authorize the lethal and nonlethal take of barred owls under the MBTA. AR 00018, 01395-1422. 

This application included a detailed explanation of the study 

design, as well as an explanation of the removal methodologies. Id. 

In September 2013, FWS determined that the application met the 

regulatory criteria and issued a permit for the take of up to 2,500 

barred owls for the first three years of the study period. AR 

00001-08. 

Plaintiffs subsequently filed a complaint in the U.S. District 

Court for the Eastern District of California, which was dismissed 

in August 2014 for lack of standing. See generally Friends of 

Animals v. Jewell, 2014 WL 3837233 (E.D.Cal. Aug. 1, 2014). Later 

that same month, FWS sought to amend its take permit. AR 35797. 

Specifically, due to funding issues, which caused a delay in 

initiating removal efforts in other study areas, FWS anticipated 

Page 6 - OPINION AND ORDER 

Case 6:14-cv-01449-AA Document 29 Filed 07/16/15 Page 6 of 28
that substantially fewer barred owls would be taken during the 

remaining two years of the permit period and thus sought 

modification. Id. FWS again went through each of the regulatory 

criteria and made findings to evaluate whether the new application 

was consistent with its permitting regulation. AR 35780-83. It also 

found that this amendment did not trigger the obligation to conduct 

a supplemental analysis pursuant to the National Environmental 

Policy Act ("NEPA") and/or reinitiate its consultation duties under 

the ESA. AR 35784-85. Accordingly, FWS issued an amended permit 

authorizing the take of 1,600 barred owls. AR 25788-91. 

In September 2014, plaintiffs commenced the present lawsuit, 

asserting that FWS' permit violated NEPA and the MBTA. In February 

2015, plaintiffs moved for summary judgment. In April 2015, FWS 

filed a cross-motion for summary judgment. 

STANDARD 

A federal agency's compliance with NEPA and the MBTA is 

reviewed under the Administrative Procedure Act ("APA"). 5 U.S.C. 

§ 706. In an APA case, summary judgment is awarded in favor of the 

plaintiff if, after reviewing the administrative record, the court 

determines that the agency's action was "arbitrary, capricious, an 

abuse of discretion, or otherwise not in accordance with law." 

Natural Res. Def. Council v. Nat'l Marine Fisheries Serv., 421 F.3d 

872, 877 (9th Cir. 2005) (citation and internal quotations 

omitted). A decision is not arbitrary or capricious if the agency 

articulated a rational connection between the facts found and the 

choice made. Nat'l Wildlife Fed'n v. U.S. Army Corps of Eng'rs, 384 

Page 7 - OPINION AND ORDER 

Case 6:14-cv-01449-AA Document 29 Filed 07/16/15 Page 7 of 28
F. 3d 1163, 1170 (9th Cir. 2004); see also Lands Council v. McNair, 

537 F.3d 981, 987 (9th Cir. 2008) (en bane), overruled on other 

grounds by Am. Trucking Ass'ns Inc. v. City of L.A., 559 F.3d 1046 

(9th Cir. 2009) (the court "will reverse a decision as arbitrary 

and capricious only if the agency relied on factors Congress did 

not intend it to consider, 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") 

Review under this standard is narrow and the court may not 

substitute its judgment for that of the agency. Lands Council, 537 

F.3d at 987. Nevertheless, while this standard is deferential, the 

court must "engage in a substantial inquiry, a thorough, 

probing, in-depth review." Native Ecosys. Council v. U.S. Forest 

Serv., 418 F.3d 953, 960 (9th Cir. 2005) (citation and internal 

quotations omitted). 

DISCUSSION 

This case hinges on whether FWS adequately complied with the 

NEPA process and whether the proposed action falls within the 

purview of the MBTA. 

I. NEPA Claims 

NEPA is "a procedural statute that does not mandate particular 

results, but simply provides the necessary process to ensure that 

federal agencies take a hard look at the environmental consequences 

of their actions." Sierra Club v. Bosworth, 510 F. 3d 1016, 1018 

Page 8 - OPINION AND ORDER 

Case 6:14-cv-01449-AA Document 29 Filed 07/16/15 Page 8 of 28
(9th Cir. 2007) (citation and internal quotations omitted); 40 

C.F.R. §§ 1502.1, 1502.2. NEPA's purpose is realized not through 

substantive mandates but through the creation of a democratic 

decision-making structure. Robertson v. Methow Valley Citizens 

Council, 490 U.S. 332, 350 (1989); see also Barnes v. U.S. Dep't of 

Transp., 655 F.3d 1124, 1131 (9th Cir. 2011) (NEPA exists "to 

protect the environment by requiring that federal agencies 

carefully weigh environmental considerations and consider potential 

alternatives to the proposed action before the government launches 

any major federal action"). 

Plaintiffs contend that FWS violated NEPA in two respects. 

First, they contend that "FWS defined the purpose and the need of 

the proposed action in unreasonably narrow terms." Pls.' Mem. in 

Supp. of Mot. Surnrn. J. 24. Specifically, plaintiffs maintain that 

it was improper "for FWS to develop an entire [final] EIS and ROD 

to implement only one Recovery Action" because the 2011 Recovery 

Plan "identified multiple strategies for NSO recovery" and 

"actually identified nine specific Recovery Actions to address the 

barred owl threat [many of which] are not yet completed or have not 

even started." Id. at 25. Second, plaintiffs assert that the final 

EIS "fail[ed] to take a 'hard look' at the [cumulative] impacts of 

the Barred Owl Removal Plan" by ·neglecting to analyze "undisclosed 

significant impacts to barred [and] spotted owls." Id. at 27-28. 

According to FWS, the proposed project, which was designed 

over a five-year period in consultation with the public and 

scientists, and which resulted in a 504-page final EIS, adequately 

Page 9 - OPINION AND ORDER 

Case 6:14-cv-01449-AA Document 29 Filed 07/16/15 Page 9 of 28
complied with NEPA's procedural mandates. 

A. Purpose and Need 

An EIS "shall briefly specify the underlying purpose and need 

to which the agency is responding in proposing the alternatives 

including the proposed action." 40 C.F.R. § 1502.13. "Agencies 

enjoy considerable discretion to define the purpose and need of a 

project." Nat'l Parks & Conservation Ass'n v. Bureau of Land Mgmt., 

606 F.3d 1058, 1070 (9th Cir. 2010), cert. denied, 131 S.Ct. 1783 

(2011) (citation and internal quotations omitted). The agency need 

only evaluate alternatives that are "reasonably related to the 

purposes of the project." Westlands Water Dist. v. U.S. Dep't of 

Interior, 376 F.3d 853, 868 (9th Cir. 2004) (internal quotation 

marks omitted) . Nonetheless, "an agency may not define the 

objectives of its action in terms so unreasonably narrow that only 

one alternative from among the environmentally benign ones in the 

agency's power would accomplish the goals of the agency's action, 

and the EIS would become a foreordained formality." Nat'l Parks, 

606 F.3d at 1070 (citation and internal quotations omitted). Where, 

as here, "an action is taken pursuant to a specific statute, the 

statutory objectives of the project serve as a guide by which to 

determine the reasonableness of objectives outlined in an EIS." 

Westlands Water Dist., 376 F.3d at 866 (citation omitted). 

In this case, the FWS specified that "[t]he purpose of the 

proposed action is to implement experimental research necessary for 

conservation of the spotted owl in accordance with Recovery Action 

2 9 of the Recovery Plan." AR 0 0 014. More specifically, " [ t] he 

Page 10 - OPINION AND ORDER 

Case 6:14-cv-01449-AA Document 29 Filed 07/16/15 Page 10 of 28
purpose of the proposed action is to contribute to fulfilling the 

intent of the [ESA] by rapidly implementing experimental research 

necessary for conservation of the spotted owl in accordance with 

Recovery Action 29," which entails: 

( 1) obtain [ ing] information regarding the effects of 

barred owls on spotted owl vital rates of occupancy, 

survival, reproduction, and population trend through 

experimental removal; (2) determin[ing] the feasibility 

of removing barred owls from an area and the amount of 

effort required to maintain reduced barred owl population 

levels for the duration of the experiment; ( 3) 

estimat[ing] the cost of baired owl removal in different 

forested landscapes; and (4) develop[ing] the information 

necessary to make a future decision about the management 

of barred owls as expeditiously as possible. 

AR 00121, 00139. Thus, the ESA, the broad objective of which is to 

conserve threatened or endangered species, informs the proposed 

action's purpose and need. 16 U.S.C. § 1531(b). 

Plaintiffs' allegations of error are flawed for three reasons. 

First, a recovery plan is "a discretionary document by which 

scientists determine the methods needed to promote recovery of the 

species [such that] [i]t is not mandatory that the agency implement 

[any] suggestions" contained therein. Leatherback Sea Turtle v. 

Nat'l Marine Fisheries Serv., 1999 WL 33594329, *12 (D.Haw. Oct. 

18, 1999) (discussing 16 U.S.C. § 1533(f)); see also Fund for 

Animals, Inc. v. Rice, 85 F.3d 535, 547 (11th Cir. 1996) ("recovery 

plans are for guidance purposes only [such that they] breath[e] 

discretion at every pore"); Friends of Blackwater v. Salazar, 691 

F.3d 428, 434 (D.C.Cir. 2012) (recovery "plan is a statement of 

intention, not a contract"). Accordingly, actions delineated in a 

recovery plan may occur at different times and be performed by 

Page 11 - OPINION AND ORDER 

Case 6:14-cv-01449-AA Document 29 Filed 07/16/15 Page 11 of 28
different agencies. 16 U.S.C. § 1533(f); see, e.g., AR 34681. 

As plaintiffs repeatedly recognize in their reply brief, FWS 

is under is no legal obligation to implement any of the suggested 

actions, much less all of the actions at one time. Pls.' Reply to 

Mot. Summ. J. 3, 9. Further, plaintiffs do not dispute that each 

Recovery Action promotes the recovery the species in its own right. 

See generally Pls.' Mem. in. Supp. of Mot. Summ. J.; Pls.' Reply to 

Mot. Summ. J. By their very nature, then, the 33 Recovery Actions 

are not alternatives of one another, but rather separate, 

independent events that, when utilized collectively, are intended 

to result in the recovery of a species. Given these circumstances, 

it would be unreasonable to ask FWS to wait and expand the scope of 

the proposed project to include other Recovery Actions, especially 

because doing so would have the practical effect of decelerating 

the overall conservation process. See AR 3 4 64 8 (" [ i] t is the 

Service's position that the threat from barred owls is extremely 

pressing and complex, requiring immediate consideration"). 

Second, the fact that there are nine other Recovery Actions in 

the 2011 Recovery Plan that are related to the barred owl does not 

mean FWS must broaden its purpose and need to include all of these 

activities. Consistent with the statutory context, FWS' objective 

is to develop a study to collect data · on barred owl and NSO 

interactions related to barred owl removal, and the purpose and 

need statement is drafted broadly enough to allow for nine 

meaningful alternatives while still meeting FWS' objective. AR 

00014-18, 00125-26, 00143~79. Plaintiffs' conclusory assertion that 

Page 12 - OPINION AND ORDER 

Case 6:14-cv-01449-AA Document 29 Filed 07/16/15 Page 12 of 28
FWS' identification of "other actions in the Recovery Plan 

indicates that they were seen as reasonable," such that they 

"should have been considered," is simply inadequate to demonstrate 

that FWS acted ln an arbitrary or capricious manner by only 

examining alternatives related to effectuating Recovery Action 29. 

See League of vHlderness Defenders-Blue Mountains Biodiversity 

Project v. U.S. Forest Serv., 689 F.3d 1060, 1072 (9th Cir. 2012) 

("[a] lternatives that do not accomplish [the purpose] of the 

project may properly be rejected as imprudent") (citation and 

internal quotations omitted). This is especially true in light of 

the fact that plaintiffs never identify which specific action in 

the 2011 Recovery Plan would be a reasonable alternative to the 

proposed project and also "do not take the position that . the 

Recovery Plan dictates FWS' NEPA obligations." Pls.' Reply to Mot. 

Summ. J. 9-10. 

Third, plaintiffs' position ignores the fact that several 

Recovery Actions are either complete, on-going and represented in 

the final EIS, or lie outside of FWS' jurisdiction. For example, 

NSO modeling and expansion of designated NSO critical habitat is 

complete. AR 34632-33, 34652-53, 34751, 34768-852, 35053-246; 77 

Fed. Reg. 71876 (Dec. 4, 2012). The results of Recovery Action 23, 

which pertains to data analyses "from the demographic study areas 

relative to the effects of barred owls on spotted owl site 

occupancy, reproduction, and survival," was incorporated throughout 

the final EIS. AR 00135-36, 00196, 00199, 00202, 34725. Similarly, 

Recovery Actions 24 and 26 - the barred owl survey protocol and 

Page 13 - OPINION AND ORDER 

Case 6:14-cv-01449-AA Document 29 Filed 07/16/15 Page 13 of 28
partitioning data, respectively - were integrated into the final 

E IS . AR 0 0 3 5 6- 5 7 , 0 0 3 6 0 , 0 0 4 6 8 , 0 0 4 7 0- 7 1 , 0 0 4 7 7 - 8 3 , 3 4 7 2 5 - 2 6 . 

Additionally, while important, Recovery Actions 27 and 31, which 

relate to public education and outreach, as well as collaboration 

with private landowners, do not directly advance the conservation 

of NSOs. AR 34726, 34729. In sum, the record does not reflect that 

any of the other Recovery Actions related to the barred owl threat 

are aimed at, or otherwise related to, studying the effects of 

removal. AR 34724-30. 

In light of the purpose of Recovery Action 2 9, the ESA' s 

underlying preservation goals, and the considerable discretion 

afforded agencies in this area, the Court finds that the final 

EIS's purpose and need statement to be reasonable. Moreover, given 

that there is no dispute that the nine alternative all address 

barred owl removal, in conjunction with the fact that plaintiffs 

neglected to identify a viable but unexamined alternative that 

would satisfy this goal, the Court finds that the final EIS 

considered a reasonable range of alternatives. FWS' motion is 

granted and plaintiffs' motion is denied as to this issue. 

B. Hard Look 

To accomplish the "hard look" mandate, NEPA requires the 

agency to provide "a reasonably thorough discussion of the 

significant aspects of the probable environmental consequences." 

Idaho Sporting Congress v. Thomas, 137 F.3d 1146, 1149 (9th Cir. 

1998), overruled on other grounds by Lands Council, 537 F. 3d 981. 

However, the agency need only address past, present, and future 

Page 14 - OPINION AND ORDER 

Case 6:14-cv-01449-AA Document 29 Filed 07/16/15 Page 14 of 28
cumulative or indirect impacts that are "reasonably foreseeable." 

40 C.F.R. § 1508.7; 40 C.F.R. § 1508.8(b). 

Here, the Court finds that FWS provided the requisite 

discussion of cumulative impacts. AR 00372-404. Critically, the 

effects of the proposed take were fully analyzed in the final EIS. 

AR 00249-75. The FWS explained that the preferred alternative would 

impact only "0.05 percent of the range of the barred owl in North 

America" and plaintiffs have not provided any argument or evidence 

to refute or otherwise undermine this statistic. AR 00258; see 

generally Pls.' Mem. in Supp. of Mot. Summ. J.; Pls.' Reply to Mot. 

Summ. J. FWS also explained why future barred owl removal efforts 

did not merit an extensive discussion: 

Options for future management of barred owls are so 

uncertain and broad that we could not attempt to address 

them . Because we do not know the feasibility of 

barred owl control as a management tool, because there is 

no proposal to implement any specific barred OltJl 

management option at this time, and because to try to 

guess what a future proposal for management might be, 

even if feasible, is entirely speculative, future barred 

owl management does not represent a cumulative effect 

(reasonably foreseeable future action) for this Final 

EIS. If a decision is made to manage barred owl 

populations in the future, implementation would be 

preceded by completion of any necessary legal 

requirements, including compliance with NEPA. 

AR 00138. Accordingly, FWS determined that future actions resulting 

in the take of barred owls had not yet been proposed and were 

therefore too speculative to be considered. a cumulative impact. 2 

2 For this reason, plaintiffs' assertion, for the first time 

in their reply, that FWS "failed to consider future management 

implications" because "it is not feasible to perpetually shoot 

all competing birds across the entire Pacific Northwest," is 

unavailing. Pls.' Reply to Mot. Summ. J. 11; see also Lentini v. 

Cal. Ctr. for the Arts, Escondido, 370 F.3d 837, 843 n.6 (9th 

Page 15 - OPINION AND ORDER 

Case 6:14-cv-01449-AA Document 29 Filed 07/16/15 Page 15 of 28
See Jones v. Nat'l Marine Fisheries Serv., 741 F.3d 989, 1000 (9th 

Cir. 2013) ("[f]or any project that is not yet proposed, and is 

more remote in time[,] a cumulative effects ~nalysis would be both 

speculative and premature") (citation and internal quotations 

omitted) . 

Plaintiffs ignore this analysis and instead cite to a 

researcher's comment about general raptor mortality rates caused by 

other human factors, such as vehicles and wind turbines. Pls.' Mem. 

in Supp. of fvlot. Summ. J. 28 (citing AR 09242) This statement, 

however, says nothing specific to forest owls, much less barred 

owls, and is not instructive as to any potential future significant 

increase in relevant mortality rates. In fact, barred owls appear 

to be thriving. See AR 00250 ("barred owl populations and 

distribution have greatly increased, to the point where populations 

may be saturated in Washington and coastal Oregon"), 00253 

(" [b] arred owls may even exceed the carrying capacit.y of their 

habitat and prey base due to their rapid rate of population 

growth") 

Likewise, FWS did not overlook any reasonably foreseeable 

indirect effects to the NSO; plaintiffs rely on an email chain 

between Dr. David Wiens and FWS' primary biologist in support of 

Cir. 2004) (courts need not consider arguments first raised in a 

reply brief) . Indeed, the final EIS is not proposing to 

indefinitely and completely remove barred owls from the NSOs' 

range, and FWS reiterates in these proceedings that any future 

barred owl management strategy, which "may, or may not, include 

removal as a tool," would have to "undergo further environmental 

analyses, including NEPA." FWS' Reply to Cross-Mot. Summ. J. 17 

n.7. 

Page 16 - OPINION AND ORDER 

Case 6:14-cv-01449-AA Document 29 Filed 07/16/15 Page 16 of 28
their argument. Pls.' Mem. in Supp. of Mot. Summ. J. 29 (citing AR 

09529-31). As a threshold matter, plaintiffs did not raise this 

issue during the administrative process, such that it cannot be 

brought before this Court. 

u.s. 752, 764-65 (2004). 

Dep't of Transp. v. Pub. Citizen, 541 

Although FWS expressly noted this 

deficiency in their opening brief, plaintiffs failed to respond. 

See Bojorquez v. Wells Fargo Bank, NA, 2013 WL 6055258, *5 (D.Or. 

Nov. 7, 2013) (" [i] f a party fails to counter an argument that the 

opposing party makes in a motion, the court may treat that argument 

as conceded") (citation and internal quotations and brackets 

omitted) . 

Regardless, even assuming that plaintiffs properly preserved 

this issue, the record demonstrates that FWS affirmatively and 

independently solicited advice on this possible indirect effect and 

reasonably found it too speculative for further analysis. AR 

09532-33. In response to FWS' inquiry, Dr. Wiens remarked there may 

be areas in which barred owls and NSOs have reached an equilibrium 

and that removing barred owls from such areas may be adverse to 

NSOs. AR 09530-31. FWS followed-up by posing additional questions 

to Dr. Wiens, explaining that it was trying to determine if this 

possible indirect effect was reasonably certain to occur. AR 09530-

32. During this exchange, FWS also observed that NSO populations 

continue to decline, which indicated that the equilibrium 

postulated by Dr. Wiens does not exist. AR 09527. Dr. Wiens replied 

by clarifying that his opinion was merely a hypothesis, describing 

this possible indirect effect as "just a thought." Id.; see also AR 

Page 17 -OPINION AND ORDER 

Case 6:14-cv-01449-AA Document 29 Filed 07/16/15 Page 17 of 28
09530 (Dr. Wiens articulating "[t]he likelihood of this effect [as] 

unknown"). He also specified: "I think it would be naive to assume 

that some NSO are not capable of adapting to the presence of BO, 

and my point is that the experiment could disrupt this adaptive 

process" but "I did not mean to imply that NSO are successfully 

reproducing and maintaining stable populations over the long-term 

in these situations." AR 09527. 

After a supplemental investigation, including consultation 

with another researcher, Dr. Lowell Diller, FWS determined that 

indirect effects from Dr. Wiens' social strife hypothesis were too 

speculative to analyze in the final EIS: 

Some have suggested that if the control area is in close 

proximity to treatment area, there is the slight 

possibility that effects of removal may influence barred 

owl population dynamics or behavior in the portions of 

the control area immediately adjacent to the treatment. 

At this time, there is no research or data that support 

this hypothesis. However, we will be able to detect these 

effects if they occur. 

AR 00297, 03189; see also Ground Zero Ctr. for Non-Violent Action 

v. U.S. Dep't of Navy, 383 F.3d 1082, 1090 (9th Cir. 2004) ("[a]n 

EIS need not discuss remote and highly speculative consequences") 

( citation and internal quotations omitted) . 3 Nevertheless, FWS 

evaluated what would it thought would happen after the removal 

3 To the extent plaintiffs contend the final EIS should have 

discussed "another experiment with two bird species, where 

removal of the more territorial species, red-bellied woodpeckers, 

negatively affected red-cockaded woodpeckers," their argument is 

unpersuasive. Pls.' Mem. in Supp. of Mot. Summ. J. 29-30. This 

study was considered by FWS; it was partially the basis for Dr. 

Wiens' hypothesis. AR 03198. Regardless, this study involved an 

entirely discrete bird species, in a different habitat, such that 

it is not informative as to any reasonably foreseeable impact on 

the proposed action. Id. 

Page 18 - OPINION AND ORDER 

Case 6:14-cv-01449-AA Document 29 Filed 07/16/15 Page 18 of 28
study was concluded, finding that "barred owl populations on the 

treatment areas would likely return to pre-removal levels" within 

five years or less. AR 00255, 00372. 

Thus, FWS did not ignore this issue; instead, agency staff 

diligently sought out the best possible advice and made a reasoned 

factual determination based on their scientific expertise. 

Additionally, the final EIS makes clear that any adverse impacts to 

NSOs due to the removal study will be closely monitored. The Court 

must defer to FWS' conclusions because they "are supported by 

studies that the agency deem[ed] reliable." Native Ecosvs. Council 

v. Weldon, 697 F.3d 1043, 1053 (9th Cir. 2012) (citation and 

internal quotations omitted); see also Lands Council, 537 F. 3d at 

993 (court must "defer to an agency's determination in an area 

involving a high level of technical expertise" and "be most 

deferential when the agency is making predictions, within its area 

of special expertise, at the frontiers of science") ( citations and 

internal quotations and brackets omitted) . FWS' motion is granted 

and plaintiffs' motion is denied as to pla{ntiffs' NEPA claims. 

II. MBTA Claim 

The MBTA makes it unlawful "to pursue, hunt, take, capture 

[or] kill" any migratory bird "[u]nless and except as permitted by 

regulations" issued by the Secretary of the Interior ("Secretary"). 

16 U.S.C. § 703(a). The MBTA thus directs the Secretary to 

determine "when [and] to what extent, if at all, and by what means, 

Page 19 - OPINION AND ORDER 

Case 6:14-cv-01449-AA Document 29 Filed 07/16/15 Page 19 of 28
it is compatible with the terms of the conventions 4 to allow 

hunting, taking, capture, killing . of any [migratory] bird [in 

the United States] and to adopt suitable regulations permitting and 

governing the same." 16 U.S.C. §§ 701, 704(a). 

FWS implements the MBTA on behalf of the Secretary and has 

issued regulations in accordance with 16 U.S.C. § 704. 50 C.F.R. § 

10.1. These regulations allow FWS, in relevant part, to distribute 

permits for the take of migratory birds ~for scientific research or 

educational purposes" if the regulatory criteria are met. 50 C.F.R. 

§ 21.23. Where such a permit is issued, the take of migratory birds 

is exempted from criminal prosecution. Id. 

Initially, it is undisputed that FWS' implementing 

regulations, including 50 C.F.R. § 21.23, were promulgated through 

the proper rulemaking process. It is also undisputed that FWS 

complied with all the regulatory requirements described in 50 

C.F.R. § 21.23 when issuing the permit. 

Plaintiffs argue that FWS violated the MBTA because, ~when the 

Secretary permits take for scientific purposes, the action must be 

intended to advance the conservation of the very species being 

taken" as "[a]ny other interpretation would fail to give effect to 

the very fact that the Conventions' purposes are to conserve and 

protect specific birds." Pls.' Mem. in Supp. of Jvlot. Summ. J. 15. 

4 In 1916, in order to create a uniform system for migratory 

birds that regularly cross national boundaries, the United States 

negotiated a treaty with the United Kingdom, acting on behalf of 

Canada; analogous treaties were later entered into with Mexico, 

Japan, and the Soviet Union. AR 00141. The MBTA implements these 

bilateral treaties, referred herein collectively as the 

"conventions." Id. 

Page 20 - OPINION AND ORDER 

Case 6:14-cv-01449-AA Document 29 Filed 07/16/15 Page 20 of 28
Conversely, FWS asserts that plaintiffs' position "ignores the 

plain language of the MBTA and FWS' implementing regulations," all 

of which "were designed to limit and manage the take of migratory 

birds through regulation, while allowing responsible harvest for 

multiple purposes including science, sport, and industry." Def.'s 

Mem. in Supp. of Cross-Mot. Summ. J. 15. 

The Court agrees with FWS. An independent review of the 

conventions and the MBTA reveals that nothing therein requires the 

issuance of a permit to advance the species being taken. See 

McDaniel v. Wells Fargo Invs., LLC, 717 F.3d 668, 677 (9th Cir. 

2013) (" [u] nder the standard rules of statutory construction, [the 

court] will not read into the statute [language] that is not 

there") (citations and internal quotations omitted). Congress knows 

how to create an affirmative duty to preserve a particular species; 

it elected not to do so here. See, e.g., 16 U.S.C. § 1532. 

Significantly, plaintiffs do not cite to a single source of law in 

support of the proposition that "a person seeking a scientific 

collecting permit must demonstrate that the purpose of the permit 

will possibly lead to scientific information that could aid in the 

conservation or protection of the species being collected." Pls.' 

Mem. in Supp. of Mot. Summ. J. 16. 

This is likely because both the MBTA and the Mexico 

Convention5 allow for much greater flexibility than plaintiffs' 

5 As FWS notes, and plaintiffs do not dispute, "only the 

Mexico Convention protects Barred Owls." FWS' Mem. in Supp. of 

Cross-Mot. Summ. J. 18 n.4 (citation omitted); Pls.' Reply to 

Mot. Summ. J. 5 n.6. Accordingly, outside the MBTA and its 

implementing regulations, the Mexico Convention is the only 

Page 21 - OPINION AND ORDER 

Case 6:14-cv-01449-AA Document 29 Filed 07/16/15 Page 21 of 28
suggest. The explicit text of the Mexico Convention, as well as the 

META and its implementing regulations, acknowledge many different 

"purposes" - including scientific research - especially where there 

is no indication that the authorized action would imperil, or even 

meaningfully effect, the overall population of species being 

taken. 6 16 U.S.C. §§ 701, 704(a); 50 C.F.R. §§ 21.11, 21.23, 21.27, 

21.41; AR 00141, 35782; see also Mexico Convention, 50 Stat. 1311, 

Preamble & Arts. I-II (Feb. 7, 1936) ("it is right and proper to 

protect said migratory birds [in] order that the species may not be· 

exterminated for this purpose it is necessary to employ 

adequate measures which will permit a rational utilization of 

migratory birds for the purpose of sport as well as for food, 

commerce and industry," such that a take is allowed, "with 

appropriate authorization, from private game farms or when used for 

scientific purposes, for propagation or for museums"). Indeed, the 

treaty that guides this Court's inquiry. See Fund for Animals v. 

Norton, 365 F.Supp.2d 394, 411 (S.D.N.Y. 2005), aff'd, 538 F.3d 

124 (2nd Cir. 2008) (courts need only analyze the proposed action 

for compliance pursuant to the treaty or treaties that explicitly 

govern the disputed bird species); see also Alaska Fish & 

Wildlife Fed'n & Outdoor Council,. Inc. v. Dunkle, 829 F.2d 933, 

941 (9th Cir. 1987), cert. denied, 485 U.S. 988 (1988) (assessing 

the proposed action under all four conventions because "all 

treaties protect the migratory birds [at issue]"). Nevertheless, 

as both parties acknowledge, similar to the Mexico Convention, 

the three remaining treaties allow the take of migratory birds 

for scientific or educational purposes, where that take is 

compatible with the terms of the conventions. 

6 As summarized herein, barred owls are now wide-spread 

throughout much of the United States and Canada, and have never 

been contemplated for listing under the ESA. As such, plaintiffs 

do not dispute that the proposed action will not place this 

species at risk of· extinction or otherwise negatively impact 

their continued existence. See generally Pls.' Mem. in Supp. of 

Mot. Summ. J.; Pls.' Reply to Mot. Summ. J. 

Page 22 - OPINION AND ORDER 

~I 

i 

Case 6:14-cv-01449-AA Document 29 Filed 07/16/15 Page 22 of 28
Canada Convention, on which plaintiffs most heavily rely, defines 

its "conservation principles" as follows: "To manage migratory 

birds internationally; To ensure a variety of sustainable uses; To 

sustain healthy migratory bird populations for harvesting needs; To 

provide for and protect habitat necessary for the conservation of 

the migratory birds; and To restore depleted populations of 

migratory birds." Canada Convention, 39 Stat. 1702, Art. II (Dec. 

8, 1916). 

In other words, instead of mandating that the Secretary issue 

scientific collecting permits solely for the protection of any 

listed species, "the META requires federal management of the 

migratory bird population to weigh [the] factors [articulated in 16 

U.S.C. § 704(a), which predominately relate to the incidence of the 

bird being taken,] when exercising authority." Fund for Animals, 

365 F.Supp.2d at 419-20. Plaintiffs implicitly acknowledge as much. 

See Pls.' Reply to Mot. Surnrn. J. 2 ("the real purpose of the 

Conventions [is] to conserve species that might otherwise be at 

risk of extinction - with the exceptions acknowledged within these 

treaties to permit limited and managed takes for defined 

purposes"). Although limited, cases that have examined this issue 

either directly or by analogy have rejected plaintiffs' position. 

See Turtle Island Restoration Network v. U.S. Dep't of Commerce, 

2013 WL 4511314, *9 (D.Haw. Aug. 23, 2013) (rejecting the 

plaintiff's assertion that any take permit issued under the MBTA 

"must promote bird conservation"); Fund for Animals, 365 F.Supp.2d 

at 419-2 0 (rejecting the plaintiffs' contention that the MBTA 

Page 23 - OPINION AND ORDER 

Case 6:14-cv-01449-AA Document 29 Filed 07/16/15 Page 23 of 28
"hold [ s] FWS to a standard requiring it to be as protective as 

possible of a protected bird species"); see also Humane Soc'y of 

the U.S. v. Watt, 551 F.Supp. 1310, 1319 (D. D.C. 1982), aff'd, 713 

F. 2d 8 65 (D.C. Cir. 198 3) ("the META does not impose upon the 

[agency] a mandatory duty to prohibit the hunting of any species 

whose population, for whatever reason, is declining"). 

Further, plaintiffs' interpretation is not in accord with the 

META's overall statutory scheme. Namely, the META authqrizes the 

killing of migratory birds for food and/or sport, which does not 

have any direct conservation benefit for the species that is being 

hunted. 50 C.F.R. § 20.100; Mexico Convention, 50 Stat. 1311, Arts. 

I-II (Feb. 7, 1936). Likewise, the META allows the permitted take 

of migratory birds that are destroying crops. 50 C.F.R. §§ 

21.41-46; J:vlexico Convention, 50 Stat. 1311, Art. II (Feb. 7, 1936). 

While it is undisputed that the META does not speak directly to the 

taking of one migratory bird for the benefit of another, more 

endangered migratory bird, the Court finds that FWS' proposed 

action is compatible with both the express language and the overall 

context of the conventions and the META. See The Wilderness Soc'y 

v. U.S. Fish & Wildlife Serv., 353 F.3d 1051, 1060 (9th Cir. 2003) 

(as amended) ("the words of a statute must be read in their context 

and with a view to their place in the overall statutory scheme"); 

see also 16 U.S.C. § 1531 (a) (4) (under the ESA, "the United States 

has pledged itself as a sovereign state in the international 

community to conserve to the extent practicable the various species 

of fish or wildlife and plants facing extinction, pursuant to [the 

Page 24 - OPINION AND ORDER 

Case 6:14-cv-01449-AA Document 29 Filed 07/16/15 Page 24 of 28
conventions] ") . 7 

Regardless, even accepting plaintiffs' argument, FWS expressly 

found that the authorized take would have the primary effect of 

advancing the scientific understanding and conservation of NSOs, 

with the subordinate impact of aiding in the scientific 

understanding of barred owls. AR 00013-18, 00120-22, 35780-83. 

While plaintiffs disagree concerning whether ~the experiment as 

constructed" will advance FWS' understanding of either species, the 

fact remains that FWS' decision is supported by a plethora of 

evidence. 8 Pls.' Mem. in Supp. of Mot. Summ. J. 17-18. In fact, the 

7 Plaintiffs' reliance on Executive Order 13186 does not 

alter this Court's analysis. As several other courts have 

observed, that order, by its own express terms, ~is intended only 

to improve the internal management of the executive branch and 

does not create any right or benefit, substantive or procedural, 

separately enforceable at law or equity by a party against the 

United States, its agencies or instrumentalities, its officers or 

employees, or any other person." Friends of Animals v. Clay, 2014 

WL 4966122, *9 (E.D.N.Y. Oct. 3, 2014) (citations and internal 

quotations omitted). 

8 Plaintiffs do not dispute that the study was designed to 

advance the scientific knowledge of both barred owls and NSOs. 

See generally Pls.' Mem. in Supp. of Mot. Summ. J.; Pls.' Reply 

to Mot. Summ. J. They nonetheless attack the proposed action's 

likelihood of success because three researchers questioned the 

utility of the study on the basis that it would merely ~confirm 

what we already know about the benefit of removing barred owls 

from NSO habitat," other researchers found that the final EIS 

lacked a ~clear articulation of feasible management options," and 

Dr. Wiens "raised concerns that the experiment will end up having 

a negative effect on the NSO." Pls.' Mem. in Supp. of Mot. Summ. 

J. 17-18 (citing AR 03952, 09530, 14433) (internal quotations 

omitted). However, as FWS notes, the researchers cited by 

plaintiffs "never explained how" the agency "should have 

developed 'feasible management options' before implementing 

Recovery Action 2 9." FW.S Mem. in Supp. of Cross-1\'lot. Summ. J. 2 5. 

Given that the whole purpose of the study is to gather 

information relating to whether removal could reasonably be used 

as a tool for managing barred owl competition with threatened 

NSOs, it is difficult to see what additional considerations.the 

Page 25 - OPINION AND ORDER 

Case 6:14-cv-01449-AA Document 29 Filed 07/16/15 Page 25 of 28
record is replete with documentation explaining how the 

implementation of Recovery Action 29 furthers a scientific purpose 

and promotes conservation of the NSO. See, e.g., AR 00013-18, 

00120-21, 00130, 00249-75, 00324, 00562-63, 01405-21, 03189, 35780-

83; see also Trout Unlimited v. Lohn, 559 F.3d 946, 959 (9th Cir. 

2009) (agency's judgments regarding "conflicting scientific 

evidence . . are entitled to particularly deferential review") 

(citations omitted); Nat'l Wildlife Fed'n, 384 F. 3d at 1174 

("[w]here scientific and technical expertise is necessarily 

involved in agency decision-making, especially in the context of 

prediction[,] the Supreme Court has held that a reviewing court 

must be highly deferential to the judgment of the agency") 

(citation omitted). Finally, contrary to plaintiffs' assertion, the 

proposed study is consistent with FWS' previous permitting 

practices. AR 01429-30, 01433-34, 01466; FWS' Mem. in Supp. of 

Cross-Mot. Summ. J. Exs. 1-3; see also Humane Soc'y of U.S. v. 

Bryson, 924 F.Supp.2d 1228, 1236-53 (D.Or.), aff'd, 548 Fed.Appx. 

355 (9th Cir. 2013) (affirming the agency's decision authorizing 

the take of sea lions pursuant to the Marine Mammal Protection Act 

for the protection of salmonid species, which are listed under the 

ESA) 

In sum, current research reflects that, when barred owls 

FWS should have undertaken. See id. ("[r]equiring FWS to know the 

results before conducting the study defeats the very notion of 

scientific research"). In any event, study results will be used 

to identify future feasible management options. AR 00562-63. As 

addressed in section I(B), Dr. Wiens' hypothesis is not 

dispositive in this context. 

Page 26 - OPINION AND ORDER 

Case 6:14-cv-01449-AA Document 29 Filed 07/16/15 Page 26 of 28
invade NSO habitat, the NSO is usually forced out of that location 

resulting in decreased survival. To gauge the extent of this 

threat, FWS spent over five years designing a study which 

resulted in a 433-page draft EIS, notice and an opportunity for 

public comment on FWS' alternatives, a 504-page final EIS refining 

nine different alternatives and responding to public comments, and 

a ROD and permit issued under the MBTA that will provide 

information on the interaction between these species and yield data 

on whether a long-term management program could be successful in 

conserving the NSO. Therefore, having undertaken a thorough review 

of the record, the Court finds that FWS pursued an exhaustive 

inquiry and articulated a rational basis, supported by facts, for 

the proposed action. 9 In acknowledging certain gaps in known 

research concerning the interplay between barred owl and NSO 

populations, the FWS did not render its final conclusion arbitrary 

and capricious, but rather indicated an intention to readjust its 

management strategy after the permit went into effect. FWS' motion 

is granted and plaintiffs' motion is denied. 

CONCLUSION 

Plaintiffs' motion for summary judgment (doc. 23) is DENIED. 

Defendant's cross-motion for summary judgment (doc. 24) is GRANTED. 

9 Neither party takes a clear position regarding the 

analytical framework that applies to the issuance of a permit 

under the MBTA, instead alternatively assessing FWS' conduct 

pursuant to Chevron U.S.A., Inc. v. Natural Res. Def. Council, 

Inc., 467 U.S. 837 (1984); Skidmore v. Swift & Co., 323 U.S. 134 

(1944); Auer v. Robbins, 519 U.S. 452 (1997); United States v. 

Mead Corp., 533 U.S. 218 (2001); etc. The Court need not resolve 

this issue as, irrespective of which standard governs, the 

proposed action passes muster. 

Page 27 - OPINION AND ORDER 

Case 6:14-cv-01449-AA Document 29 Filed 07/16/15 Page 27 of 28
As such, the parties' requests for oral argument are DENIED as 

unnecessary. This case is DISMISSED. 

IT IS SO 

Dated 2015. 

United States District Judge 

Page 28 - OPINION AND ORDER 

Case 6:14-cv-01449-AA Document 29 Filed 07/16/15 Page 28 of 28