FOR PUBLICATION



### U NITED STATES COURT OF APPEALS

F OR THE NINTH CIRCUIT

F RIENDS OF A NIMALS

, Plaintiff

- Appellant

,

v.

U

NITED S TATES F ISH AND W ILDLIFE
S ERVICE , an agency of the United States; M ARTHA W ILLIAMS , in her official capacity as the Director of

the United States Fish and Wildlife Service, Defendants

- Appellees. No. 21

- 35062

D.C. No.

6:17

- cv

- 00860

- AA

OPINION

A ppeal from the United States District Court

f or the District of Oregon

A nn L. Aiken, District Judge, Presiding

A rgued and Submitted November 17, 2021

P asadena, California

F iled March 4, 2022

B efore: Johnnie B. Rawlinson and Kenneth K. Lee, Circuit Judges, and Matthew F. Kennelly, * District Judge.

O pinion by Judge Lee

* The Honorable Matthew F. Kennelly, United States District Judge for the Northern District of Illinois, sitting by designation.2 F RIENDS OF A NIMALS V

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SUMMARY **

Environmental Law

The panel affirmed the district court ’ s summary judgment in favor of the U.S. Fish and Wildlife Service in an action brought by an environmental group challenging the

Service ’ s “ barred owl removal experiment, ” which was designed to protect the northern spotted owl, a threatened species under the Endangered Species Act ( “ ESA ” ).

Barred owls have encroached on the spotted owl’s habitat. The barred owl removal experiment is a proposed

lethal removal of barred owls from certain areas to measure their environmental and demographic effect on northern spotted owls. To complete the exp eriment, the Service issued permits and entered into Safe Harbor Agreements

with four non

- federal landowners within the Oregon coast ranges study area.

Plaintiff alleged that the ESA prohibited the government from taking action that may incidentally harm spotted owls or their habitat unless it provided a “net conservation benefit,” and the barred owl removal experiment will not yield a net conservation benefit because it does not likely lead to the recovery of the spotted owl population or its

habitat.

Af firming the district court, the panel held that the barred owl removal experiment will produce a “net conservation benefit” under the ESA’s implementing regulations because

** This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.F RIENDS OF A NIMALS V

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it allowed the agency to obtain critical information to craft a policy to protect t hreatened or endangered species. The panel also held that the Service reasonably described baseline conditions/“resident” owl survey data. In addition, the panel held that the Service adequately analyzed the small portion of critical habitat affected by the Oregon permit/Safe Harbor Agreements.

T he panel held that the Service complied with the National Environmental Policy Act ( “ NEPA ” ), and did not have to conduct a supplemental environmental impact statement under NEPA because it had adequately
contemp lated this experiment in its earlier analysis. In addition, the permits and the experiment need not be analyzed in a single environmental impact statement because they were not “ connected actions. ”

COUNSEL

Jennifer Best (argued) and Michael Ray Harris, Friends of Animals, Centennial, Colorado

, for Plaintiff

- Appellant.

Andrew M

. Bernie (argued) , Andrew C. Mergen, Ellen J. Durkee, and Coby Howell, Attorneys; Jean E. Williams, Acting Assistant Attorne y General; Environment and Natural Resources Division, United States Department of Justice, Washington, D.C. ; Lydia Grimm, Office of the Regional Solicitor, Department of the Interior, Washington, D.C.; for Defendants

- Appellees.4 F RIENDS OF A NIMALS V

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OPINION LEE, Circuit Judge:

This case is a tale of two owls. For the northern spotted owl, it has been the worst of times: It remains a threatened species, and its population continues to dwindle in the

Pacific Northwest and Northern California. But it has been

the b est of times for the barred owl: Its abundant population burgeoning, the barred owl has expanded westward and encroached on the spotted owl’s habitat. And barred owls have even been spotted attacking their brethren bird.

Trying to usher in a spring of hop e for the northern spotted owls, the United States Fish and Wildlife Service (FWS) introduced a “barred owl removal experiment.” It proposed lethally removing barred owls from certain areas to measure their environmental and demographic effect on

the nort hern spotted owls. Friends of Animals (“Friends”), an environmental group, sued the FWS, claiming that this experiment violates the Endangered Species Act (ESA) and the National Environmental Policy Act (NEPA). Friends mainly argues that the ESA prohibit s the government from taking action that may incidentally harm spotted owls or their habitat unless it provided a “net conservation benefit.” On top of harming some spotted owls as scientists enter their habitat, the experiment will not yield a “net conse rvation benefit” because it does not directly lead to the recovery of the spotted owl population or its habitat, according to

Friends.

We affirm the district court’s grant of summary judgment for FWS. We hold that this experiment will produce a “net conse rvation benefit” under the plain language of the ESA’s implementing regulations because it allows the agency to obtain critical information to craft a policy to protect threatened or endangered species. We alsoF RIENDS OF A NIMALS V

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hold that FWS did not have to conduct a supp lemental environmental impact statement under NEPA because it had adequately contemplated this experiment in its earlier analysis.

BACKGROUND

I. Background

a. The barred owl threatens the northern spotted

owl.

The northern spotted owl is one of three subsp ecies of spotted owls (Northern, California, and Mexican). The species generally lives in mature and old

- growth forests around southwest British Columbia through the Cascade Mountains and coastal ranges in Washington, Oregon, and

Northern California. Sin ce 1990, FWS has listed the northern spotted owl as a threatened species under the ESA.

The barred owl, in contrast, is an abundant species native to eastern North America. Over the past century, the barred owl has moved west, expanding its range across th e continent to the west coast. And in the process, the barred owl has encroached on the northern spotted owl’s range, becoming an invasive species. The barred owl’s and spotted owl’s ranges now completely overlap, and the two species’

food needs and habi tats share significant similarities as well.

In its most recent 2011 Recovery Plan for the northern spotted owl, FWS stated that “[s]trong evidence indicates that barred owls negatively affect spotted owls and their populations” by displacing spotted owls from their habitat and reducing spotted owl survival and reproduction. Barred owls have also sometimes attacked the northern spotted owl.6 F RIENDS OF A NIMALS V

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b. FWS designs a barred owl removal experiment.

FWS identified “barred owl management” as one of the four basic steps to protect the northern spotted owl. The 2011 Recovery Plan noted that while evidence suggests that “barred owls compete with spotted owls for nesting sites, roosting sites, and food, and possibly predate spotted owls,”

there are still “substantial infor mation gaps.” To fill these informational gaps, the Recovery Plan called for FWS to “[d]esign and implement large

- scale control experiments to assess the effects of barred owl removal on spotted owl site occupancy, reproduction, and survival.”

FWS then issued a Record of Decision in 2013 authorizing the lethal barred owl removal experiment. FWS expected the experiment to provide “needed information” such as “the effects of barred owls on spotted owl vital rates of occupancy, survival, reproduction, and population trend”; the “feasibility of removing barred owls from an area”; the “level of effort required to maintain reduced barred owl population levels”; the “cost of barred owl removal”; and the overall utility of barred owl removal for “management of

barred owls.”

FWS’ experiment designated four study areas spread across the northern spotted owl’s range. Relevant here is the Oregon Coast Ranges study area, which covers just over 500,000 acres. Within the study area, FWS designated

“treatment area s” from which about 3,600 barred owls would be removed. FWS expected removal to be completed in four years, though the overall experiment, including conducting surveys and gathering data, could last up to ten

years.

FWS also issued an Environmental Impact Statement (EIS) in 2013 for the experiment, as required by NEPA.F RIENDS OF A NIMALS V

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NEPA is “a procedural statute intended to ensure Federal agencies consider the environmental impacts of their actions

in the decision

- making process.” 40 C.F.R. § 1500.1. 1 For major actio ns that will significantly affect the environment, NEPA requires federal agencies to inform the public of their analysis in an EIS. See 42 U.S.C. § 4332(C); 40 C.F.R. § 1502.4(a). Additionally, an agency may need to issue a supplemental environmental impa ct statement (Supplemental EIS) to augment a prior EIS if the agency makes “substantial changes” to the action, or “significant

new circumstances or information” arises. 40 C.F.R. §1502.9(d)(1). 2

The EIS for the barred owl removal experiment

concluded th at it would have a negligible effect on the barred owl population, given the species’ abundance. The EIS also acknowledged that the northern spotted owl could experience “minor and short

- term negative effects” because of the intrusions by scientists into its habitat. But the main anticipated effect would be a potential “positive change in

1 In the time between the filing of the lawsuit and our decision today, NEPA’s regulations were updated. S ee Update to the Regulations Implementing the Procedural Provisions of the National Enviro nmental Policy Act, 85 Fed. Reg. 43,304 (July 16, 2020) (to be codified at 40 C.F.R. § § 1500

– 1508, 1515

– 1518). We cite the current version of the regulations throughout our decision. T he old and new versions of the cited regulations are substantively the same.

2 If the proposed action on its face does not appear to have a significant impact, an agency may prepare a less

- intensive environmental assessment (EA) to determine whether the action’s effects would be significant. See 40 C.F.R. § 1501.5(a)

– (c). I f the agency concludes in its EA that the proposed action will not significantly affect the human environment, the agency may issue a “finding of no significant impact” (FONSI) rather than produce a full

- scale EIS. Id. § 1501.6(a).8 F RIENDS OF A NIMALS V

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spotted owl demographic performance” because of decreased competition from the barred owl. More broadly, the major benefit of the experiment would be obtaining data

nec essary to craft long

- term recovery strategies for the northern spotted owl.

c. Endangered Species Act bars actions that harm threatened or endangered species and their habitats unless they provide a “net conservation

benefit.”

Before FWS could begin this e xperiment, it had to comply with the ESA’s many requirements. Section 7(a)(2) of the ESA requires each federal agency to consult an expert wildlife agency to ensure “that any action authorized, funded, or carried out

. . . is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification”

of the critical habitat. 16 U.S.C. § 1536(a)(2).

Section 7 and its implementing regulations detail the consultation process for deter mining the biological impacts of a proposed action, leading to a Biological Opinion (BiOp). Id. § 1536(b)(3)(A); 50 C.F.R. § 402.14(h). In the Biological Opinion, the expert agency (here, FWS) renders its opinion whether the proposed action will likely

“ jeopardize the continued existence of a listed species or

result in the destruction or adverse modification of critical

habitat.” 50 C.F.R. § 402.14(g)(4).

Along with requiring cross

- agency consultation, the ESA broadly prohibits the “take” of any endange red or threatened species in the United States. 16 U.S.C. § 1538. “Take” means “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any

such conduct.” Id. § 1532(19). The ESA’s implementingF RIENDS OF A NIMALS V

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regulation s also define “harm” in the definition of “take” to include “significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.” 50 C.F.R. § 17.3(c)(3).

Despite this general prohibition on take, the ESA provides a few exceptions. Relevant here, FWS may issue

“Enhancement of Survival Permits” that authorize take “for scientific purposes or to enhance the propagation or survival

of t he affected species

. . . . ” 16 U.S.C. § 1539(a)(1)(A). FWS may issue these permits and enter into corresponding Safe Harbor Agreements with non

- federal landowners whose lands that the agency seeks to use for conservation

efforts. See 50 C.F.R. § 17.32( c)(1). The Safe Harbor Agreements set the terms of the permits and try to

incentivize non

- federal property owners to voluntarily undertake conservation activities on their property. Id. In exchange, FWS assures property owners that it will “not require additional or different management activities” and will allow the property to return to its previous condition at the agreement’s conclusion. Id. § 17.32(c)(5).

To issue a permit, FWS must find that:

“The implementation of the terms of the Safe Harbor Agreement is reasonably expected to provide a net conservation benefit to the affected listed species by contributing to the recovery of [the] listed species included in the permit, and the Safe Harbor Ag reement otherwise complies with the Safe Harbor policy available from the Service.”

Id. § 17.32(c)(2) (emphasis added). In 1999, FWS issued its Safe Harbor Policy that fleshed out the requirements for10 F RIENDS OF A NIMALS V

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issuing permits. See Announcement of Final Safe Harbo r Policy, 64 Fed. Reg. 32,717 (June 17, 1999) (the Policy).

d. FWS issues Enhancement of Survival Permits and enters into Safe Harbor Agreements with

four non

- federal landowners.

The Oregon Coast Ranges study area is a checkerboard of federal, state, and private land. To create contiguous areas for the experiment, FWS sought cooperation from non

federal landowners to gain access to their lands. Though not strictly necessary to complete the experiment, such access would help FWS complete the experimen t in the most efficient and complete manner. Failure to gain such access could reduce the ability to detect changes in the spotted owl population caused by barred owl removal.

To that end, FWS issued permits and entered into Safe Harbor Agreements with fo ur non

- federal landowners within the Oregon Coast Ranges study area: Roseburg Resource Company (Roseburg), Weyerhaeuser Company (Weyerhaeuser), Oxbow Timber I, LLC (Oxbow), and the Oregon Department of Forestry (Oregon). 3

Each permittee agreed to allow FW S to access their property and roads to remove barred owls and agreed to conduct or support spotted owl surveys on their lands. In exchange, the permittees may keep harvesting timber on their property in areas where no northern spotted owls

resided when t he parties entered into the Safe Harbor Agreements (“non

- baseline sites”) without incurring

3 After FWS issued the permits, Roseburg acquired Oxbow. Because of this acquisition, there are now only three permits for the Oregon Coast Ranges study area that are being challenged (Roseburg

- Oxbow, Weyerhaeuser, and Oregon).F RIENDS OF A NIMALS V

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liability for incidentally taking any spotted owls that later reoccupy those locations. The permittees, however, receive no liability protection for any incidental take in areas where the owls already resided (“baseline sites”).

FWS used survey data to designate any site in which a “resident” northern spotted owl had been detected in the previous three to five years as a baseline site. Thus, the permits authorized i ncidental take only in non

- baseline sites ( i.e. , areas where no “resident” northern spotted owls have been observed in the past three to five years). And even in

those non

- baseline sites, the permits restricted the land during nesting and rearing season.

A s required by the ESA’s implementing regulations, FWS determined that each permit was “reasonably expected to provide a net conservation benefit” to the northern spotted

owl. See 50 C.F.R. § 17.32(c)(2). Although FWS acknowledged that there was potential for “take of spotted owls on the temporarily reoccupied” non

- baseline sites, FWS concluded such take would be “more than offset by the value of the information gained from the Experiment and potential contribution to long

- term barred owl management

strate gy.”

e. FWS prepares Biological Opinions and EAs to comply with the ESA and NEPA, respectively.

As required by the ESA, FWS issued a series of Biological Opinions simultaneously with the permits and Safe Harbor Agreements. The Biological Opinions

determin ed that the Roseburg, Oxbow, and Weyerhaeuser permits would neither jeopardize the northern spotted owl nor adversely modify its critical habitat. Given each permit’s small effect on spotted owl habitat, FWS concluded that the potential harm caused by the experiment would12 F RIENDS OF A NIMALS V

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likely be offset by the information gained if the experiment

succeeded.

FWS’ analysis differed slightly for the Oregon permit because of its potential effect on a small portion of critical habitat. In total, the Oregon permit authorized up to 3,345 acres of critical habitat loss. This represented less than 0.04 percent of total range

- wide spotted owl critical habitat. FWS still believed that such habitat destruction was justified because it would aid the barred owl removal experiment. FWS thus concluded that the Oregon permit was unlikely to jeopardize the northern spotted owl or its critical habitat.

And as required by NEPA, FWS also prepared an Environmental Assessment for each permit. Each Environmental Assessment made a Finding of No Significant Impact, concluding that the permit is “not likely to have a significant impact on the spotted owl.” The permits only authorized incidental take in non

- baseline sites that do not currently have spotted owls and are unlikely to be

recolonized without barred owl removal. Thus, northern spotted owls would be taken only if the experiment facilitated spotted owl recolonization in previously unoccupied areas.

f. Friends sues FWS, alleging violations of the ESA

and NEPA.

In June 2017, Friends sued FWS, challenging the issuance of the Enhancement of Survival permits and Safe Harbor Agreements in the Oregon Coast Ranges and Klamath study areas. The district court held that Friends lacked standing to bring either claim. See Friends of

Animals v. Shee han , 2018 WL 6531676, *5 (D. Or. Dec. 11, 2018). This court reversed in part, holding that Friends had standing to challenge permits issued in the Oregon CoastF RIENDS OF A NIMALS V

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Ranges, but not the Klamath, study area. Friends of Animals v. U.S. Fish & Wildlife Serv. , 789 F. App’x 599, 600

– 01 (9th Cir. 2020).

On remand, the district court considered the merits and granted summary judgment for FWS. Friends of Animals v.

Sheehan , 2021 WL 150011, *1 (D. Or. Jan. 15, 2021). Friends alleged FWS violated the ESA by “(1) issuin g a permit that fails to achieve a ‘net conservation benefit,’ (2) failing to use the best biological and habitat information in forming baseline conditions, and (3) failing to analyze the

SHA’s effect on critical habitat.” Id. at *3. Additionally,

Frien ds claimed FWS violated NEPA because it (1) failed to conduct a Supplemental EIS after issuing the permits, and (2) failed to discuss the experiment and permits in a single EIS as required for “connected actions.” Id. at *13.

For the first ESA claim, the district court determined that the regulation specifying that a Safe Harbor Agreement should be “reasonably expected to provide a net conservation benefit,” see 50 C.F.R. § 17.32(c)(2), was ambiguous. Id. at *3. Because the district court found that

the Safe Harbor Policy referenced by § 17.32 did not carry the force of law, it held that the Safe Harbor Policy

— which elaborates on the meaning of “net conservation benefit”

— could not be used to resolve the ambiguity. Id. at *5.

Because § 17.32 was ambiguou s, the district court applied

Auer 4 deference to FWS’ interpretation that “information” may constitute a “net conservation benefit” and found the agency’s interpretation reasonable. Id. at *3, *6. The district court also noted that the Policy supported FWS’ interpretation. See id. at *6

– 7.

4 See Auer v. Robbins , 519 U.S. 452 (1997).14 F RIENDS OF A NIMALS V

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The district court next held that FWS reasonably defined baseline conditions as suggested in the Safe Harbor Policy because the agency used the best techniques and information

available. Id. at *8. The district court held that FWS’

reliance on “reside nt” owl populations, rather than “floater” ( i.e ., young and displaced) owls, tracked the Safe Harbor Policy. Id. at *10. The district court also rejected Friends’ argument that FWS’ survey data could not establish that

non

- baseline sites were “abandoned” because neither the Safe Harbor Policy nor other agency guidance requires baseline conditions to be designated based on

“abandonment.” Id. at *11.

Lastly, the district court found that FWS adequately considered impacts to critical habitat affected by the Oregon permit in the issued Biological Opinions. Id. at *12. The court rejected Friends’ argument that the Biological Opinions insufficiently analyzed important subsets of critical habitat because the Biological Opinions did “consider and assess[] the f oraging, transience, and

colonization value of the affected critical habitat

. . . . ” Id.

The district court then turned to Friends’ NEPA claims.

The district court held that FWS did not have to conduct a Supplemental EIS because the “2013 EIS accounted for the possibility that nonfederal lands could be included in the experiment” and the authorization of incidental take in non

baseline sites did “not constitute a substantial change

relevant to environmental concerns.” Id. at *13. The district

court als o held that FWS did not have to analyze the experiment and permits in a single EIS. Id. at *14. Because “each action could exist without the other,” the experiment and the permits were not “connected actions.” Id.

On appeal, Friends presses the same ESA and NEPA

claims.F RIENDS OF A NIMALS V

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STANDARD OF REVIEW

We review a district court’s grant of summary judgment

de novo. Native Ecosystems Council v. Marten , 883 F.3d 783, 789 (9th Cir. 2018). “We review an agency’s compliance with the ESA

. . . and NEPA under the ‘arbitrar y and capricious’ standard of the APA.” Id. at 788; see also

5 U.S.C. § 706(2)(A). Under this standard, we “must determine whether the agency considered the relevant

factors and articulated a rational connection between the

facts found and the choices ma de.” Ranchers Cattlemen Action Legal Fund v. U.S. Dep’t of Agric. , 499 F.3d 1108, 1115 (9th Cir. 2007) (internal quotation marks omitted). Arbitrary and capricious review is “highly deferential” and presumes that the agency action is valid if “a reasonab le basis exists” for the agency’s decision. Id. (citation omitted).

ANALYSIS

I. FWS complied with the ESA.

Friends renews its same ESA arguments rejected by the district court. We reject them and conclude that FWS complied with the ESA.

a. The “informational benefit” from the experiment may constitute a “net conservation benefit” under ESA regulations.

As noted above, the ESA generally bars anyone

— including the federal government

— from “taking” endangered or threatened species or making significa nt modifications to their habitat that kill or injure wildlife. 16

U.S.C. § 1538 (prohibiting the “take” of threatened or endangered species); 50 C.F.R. § 17.3(c)(3) (defining16 F RIENDS OF A NIMALS V

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“harm” under the “take” definition to include significant

modification of habit at).

The ESA, however, carves out a few exceptions. Relevant here, FWS can issue a permit allowing someone to “take” an endangered or threatened species if it is “for scientific purposes or to enhance the propagation or survival of the affected species

. . . . ” 16 U.S.C. § 1539(a)(1)(A). And ESA regulations permit the agency to enter into Safe Harbor Agreements with non

- federal landowners whose lands the agency wants to use for conservation efforts if the proposed actions are “reasonably expected to prov ide a net conservation benefit to the affected listed species” and “otherwise compl[y] with the Safe Harbor policy.” See 50

C.F.R. § 17.32(c)(1); (c)(2)(ii) (emphasis added).

FWS designed its barred owl removal experiment relying on its authority to issue these permits and to enter into Safe Harbor Agreements. But Friends argues FWS cannot authorize this experiment because it does not provide a “net conservation benefit.” Their argument proceeds as follows: Because the ESA regulation does not define “net conservation benefit,” that term is ambiguous. The Safe Harbor Policy, however, defines “net conservation benefit.” 64 Fed. Reg. at 32,722. And according to Friends, that

definition of “net conservation benefit” in the Safe Harbor Policy supposedly requires direct recovery of the species,

and thus does not include the “informational benefit” that FWS expects from its experiment.

We disagree with Friends’ reading of “net conservation benefit.” For starters, “net conservation benefit” is not ambiguou s

— at least on whether that term includes

informational benefit. The ESA defines “conservation” as “all methods and procedures” necessary for the recovery of the species, which “include, but are not limited to, allF RIENDS OF A NIMALS V

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activities associated with scientific res ources management
such as research .” 16 U.S.C. § 1532(3) (emphasis added). “Research” means “the collecting of information about a particular subject.” Merriam

- Webster Dictionary, https://www.merriam

- webster.com/dictionary/research. And we generally ass ume that a word in an implementing regulation tracks the meaning of that same word in the authorizing statute. See Decker v. Nw. Envtl. Def. Ctr. , 568 U.S. 597, 609 (2013) (regulations must be interpreted consistently with statute they implement).

So the definition of “conservation” in the ESA

— and, by extension, in the ESA regulation at issue

— includes activities aimed at collecting information (such as the efficacy of barred owl removal as a conservation strategy).

And thus “net conservation benefit” incl udes informational and research benefit contemplated by the barred owl removal experiment. Whether this informational benefit outweighs the harm done from any incidental take is an expert judgment that we generally defer to the agency. San Luis & Delta

M endota Water Auth. v. Locke , 776 F.3d 971, 994 (9th Cir. 2014).

Ignoring the definition of “conservation” in the ESA,

Friends insists that we should look at the definition of “net conservation benefit” in the agency’s Safe Harbor Policy:

“the cumulative be nefits of the management

activities identified in a Safe Harbor Agreement that provide for an increase in a species’ population and/or the enhancement, restoration, or maintenance of the covered species’ suitable habitat within the enrolled property, takin g into account the length of the Agreement and any off

- setting adverse effects attributable to the incidental taking18 F RIENDS OF A NIMALS V

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allowed by the enhancement of survival permit. Net conservation benefits must be sufficient to contribute, either directly or indirectly, to the recovery of the covered species.”

64 Fed. Reg. at 32,722. According to Friends, the Policy’s definition requires that the permits directly cause an “increase” in either the northern spotted owl’s population or

its suitable habitat. And because the information from the experiment does neither on its own, Friends argues that the experiment cannot qualify as a “net conservation benefit.”

But even if we assume that the Safe Harbor Policy has the force of law, Friends’ reading of “net conservation

benef it” remains unconvincing. 5 See W. Radio Servs. Co.,

Inc.

, v. Espy , 79 F.3d 896, 900 (9th Cir. 1996) (“[W]e will review an agency’s alleged noncompliance with an agency pronouncement only if that pronouncement actually has the force and effect of law.”). To begin, the last sentence of the Policy’s definition states that “net conservation benefit” must “directly or indirectly ” contribute to the recovery of the species. Id. at 32,722 (emphasis added). The experiment here “indirectly” aids the recovery of t he northern spotted

owl.

Other parts of the Safe Harbor Policy also undermine Friends’ cramped reading of “net conservation benefit.” Much like we review an entire statute to determine a specific provision’s meaning under traditional canons of statutory

i nterpretation, we must examine the entire Policy to discern the meaning of “net conservation benefit.” Cf. U.S. Nat’l

5 While the Safer Harbor Policy underwent a notice

- and

- comment process, it was not codified in the Code of Federal Regulations.F RIENDS OF A NIMALS V

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Bank of Or. v. Indep. Ins. Agents of America, Inc. , 508 U.S. 439, 455 (1993) (When “expounding a statute, we must not be guided by a sing le sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy.”) (internal quotation marks omitted). And in responding to public comments asking to clarify the meaning of “net conservation benefit,” FWS stat ed three times that “net conservation benefits may result from

. . . creating areas

for testing and implementing new conservation strategies.” 64 Fed. Reg. at 32,719 (Response 5), 32,720 (Response 11), 32,722 (Purpose of the Policy) (emphasis added). FWS here is testing new conservation strategies by conducting the barred owl removal experiment.

In short, we hold that “net conservation benefit” as used in the ESA regulation includes informational benefit provided by the barred owl removal experiment. 6

b. FWS reasonably described baseline conditions using “resident” owl survey data.

Friends also claims that FWS improperly defined

baseline sites where it cannot remove the barred owls. 7 The

6 It does not necessarily mean that the agency can justify an incidental take of a threatened or endangered species based on speculativ e or questionable research. That issue goes to the “ net
conservation benefit”

— i.e., whether the research data outweighs the harm caused by the take. Friends, however, does not appear to challenge

FWS ’ determination that the experiment will provide useful data.

7 As with its “net conservation benefit” argument, Friends’ “baseline

conditions” claim presumes non

- compliance with the Safe Harbor Policy and other agency guidance. We do not review claims of non

- compliance with an agency’s own pronouncement unle ss that pronouncement carries

the force of law. See W. Radio , 79 F.3d at 900. Here, we need not decide20 F RIENDS OF A NIMALS V

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Safe Harbor Policy requires that each Safe Harbor Agreement fully describe “the agreed upon baseline conditions” for the covered species within the property. 64 Fed. Reg. at 32,723. “Baseline conditions” are the “population estimates and distribution and/or habitat characteristics and determined area of the enrolled pr operty that sustain seasonal or permanent use by the covered species

. . . . ” Id. at 32,722.

For the Roseburg, Oxbow, and Weyerhaeuser Safe Harbor Agreements, FWS designated a site as “baseline”

— and thus not subject to the permits’ incidental take

authori zations

— whenever a single resident spotted owl had been spotted on that site in annual surveys from 2013 to 2015. For the Oregon Safe Harbor Agreement, FWS used the same methodology but relied on surveys from 2011 to

2015.

Friends argues that FWS’ methodo logy suffered two flaws. First, Friends claims that FWS determined that baseline sites were “effectively abandoned” but that the agency’s own policy statements show three to five years of survey data cannot establish “abandonment.” This “abandonment” arg ument is a red herring. There is simply no requirement

— in either the Safe Harbor Policy or the agency’s other guidance

— that FWS designate baseline

conditions based on “abandonment.” The Safe Harbor Policy does not mention “abandonment” in its discussion of

baseline conditions. See 64 Fed. Reg. at 32,722

– 24. And the Safe Harbor Agreements make no such finding either. Each Safe Harbor Agreement determined that baseline sites were “unoccupied,” not “abandoned.” The guidance relied

whether the Policy and other guidance carry the force of law because FWS in any event complied with both.F RIENDS OF A NIMALS V

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on by Friends explicitl y distinguishes between “unoccupied” and “abandoned” sites. The guidance states that “[o]ccupancy is an annual rate and is not equivalent to ‘abandoned,’ which is a permanent status.” And the guidance says unoccupied sites should be determined by using a t least “3 years of survey.” FWS complied with this methodology by using three to five years of surveys in designating the Safe Harbor Agreements’ baseline

conditions.

Second, because the Safe Harbor Policy defines “baseline conditions” as including areas that sustain “seasonal” use, Friends alleges FWS erred in limiting baseline sites to only those areas where a “resident” spotted owl was detected and not considering “f loaters” (young and displaced spotted owls). The Safe Harbor Policy instructs

that determination of baseline conditions should be flexible and based on agreement between FWS and the landowner. 64 Fed. Reg. at 32,719. Given the flexibility granted to the parties, we cannot say exclusion of “floater” owls violates the Safe Harbor Policy. As FWS explained, there is “no evidence that floaters (young and displaced territorial spotted owls) successfully breed unless they first become

established on a territor y” and are thus unlikely to contribute to the recovery of the species. It was reasonable for FWS and the parties to set baseline sites based on “resident” owls that are of primary conservation importance. Moreover, the Safe Harbor Agreements include spec ial protections during nesting and roosting seasons in non

- baseline areas, requiring permittees to “refrain from removal or alteration of habitat” within the core area containing nesting trees.22 F RIENDS OF A NIMALS V

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c. FWS adequately analyzed the small portion of critical habitat affected by the Oregon permit.

The ESA requires federal agencies to ensure that their actions will not destroy or adversely modify a species’ designated critical habitat. 16 U.S.C. § 1536(a)(2). To this end, FWS issued a Biological Opini on for each permit. Each Biological Opinion concluded that the permit was unlikely to destroy or adversely modify the northern spotted owl’s

critical habitat. 50 C.F.R. § 402.14(h)(iv)(A)

– (B).

Friends objects to the Biological Opinions for two

reasons. First, Friends claims that the permits at issue “overlap with critical habitat on state lands” and that FWS failed to analyze this fact in the Biological Opinions. But Friends cannot point to anything in the administrative record showing that FWS failed t o analyze affected critical habitat. Only the Oregon permit/Safe Harbor Agreement overlaps

with critical habitat. Because the actual amount of critical habitat that would be destroyed by the experiment was unknown, FWS took a conservative approach, assum ing the entire 3,345 acres of critical habitat in the Oregon lands

would be removed. Even under this conservative assumption, less than 0.04 percent of the spotted owl’s total critical habitat would be destroyed. FWS concluded such a “low level of potent ial loss would not impair the overall recovery of the spotted owl

. . . . ” We cannot say such a

conclusion was erroneous.

Second, Friends argues that the Biological Opinions were arbitrary and capricious because they analyze only one subset of designated critical habitat

— nesting/roosting

habitat

— and ignore impacts to other subsets such as “habitat for foraging and/or transience or colonization stages of dispersal.” We agree with FWS that the Biological Opinions sufficiently analyzed the relevant subsets o f critical habitat.F RIENDS OF A NIMALS V

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Contrary to Friends’ claim, the Oregon Biological Opinions did analyze the permit’s effect on foraging, transience, and colonization habitat, but still concluded that the effect would not appreciably reduce such subsets because of thei r “scattered nature” throughout the Oregon lands.

But even without such an analysis, we would not consider the agency’s focus on nesting/roosting habitat to be arbitrary and capricious. FWS said in the Biological Opinion that nesting/roosting habitat is “ likely the most important habitat in determining whether spotted owls can support themselves within a specific area.” Given its importance to spotted owl survival, we cannot say that the agency acted improperly by focusing its analysis on a vital

habitat subset. See San Luis & Delta

- Mendota , 776 F.3d at 994 (agency’s scientific judgments owed great deference). We thus reject Friends’ critical habitat claims.

II. FWS complied with NEPA.

In 2013, FWS issued an Environmental Impact Statement (EIS) analyzing the experiment’s environmental impacts. Later, when FWS issued the permits and Safe Harbor Agreements, it conducted a less

- intensive Environmental Assessment (EA) for each permit. All EAs concluded that the spotted owl would not be significantly

affecte d. Friends contends FWS’ environmental analyses did not meet NEPA requirements in two ways. First, although FWS issued an initial EIS, Friends claims FWS had to issue a Supplemental Environmental Impact Statement (Supplemental EIS), instead of the lesser EAs, when it later issued the permits. Second, Friends argues FWS should have considered environmental effects of each permit with those from other permits and the broader experiment. We find FWS properly complied with its NEPA obligations.24 F RIENDS OF A NIMALS V

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a. FWS did n ot have to conduct a Supplemental EIS when it issued the permits.

NEPA does not expressly address when an agency must prepare a Supplemental EIS. Marsh v. Or. Nat. Res.

Council , 490 U.S. 360, 370 (1989). But “NEPA cases have generally required agencies t o file [a Supplemental EIS] when the remaining governmental action would be environmentally ‘significant.’” Id. at 372 (quoting Tenn. Valley Auth. v. Hill , 437 U.S. 153, 188 n.34 (1978)). Whether an action, such as issuing the permits at issue, has

envir onmental significance is a “classic example of a factual dispute” that “implicates substantial agency expertise” to

which “we must defer.” Id. at 376

– 77.

While NEPA does not squarely address Supplemental

EIS obligations, the Council on Environmental Quali ty (CEQ) has issued regulations that “impose a duty on all federal agencies to prepare” a Supplemental EIS if “(i) the agency makes substantial changes to the proposed action that are relevant to environmental concerns; or (ii) there are significant new ci rcumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.” Id. at 372; 40 C.F.R. § 1502.9(d)(1).

CEQ has published more guidance, which our circuit has adopted as the proper framework for applying § 1 502.9(d)(1). Russell Country Sportsmen v. U.S. Forest

Serv. , 668 F.3d 1037, 1045 (9th Cir. 2011) (citing Forty Most Asked Questions Concerning CEQ’s National Environmental Policy Act Regulations, 46 Fed. Reg. 18,026, 18,035 (Mar. 23, 1981)). Under this f ramework, a Supplemental EIS is not required if: “(1) the new alternative

is a ‘ minor variation of one of the alternatives discussed in the [original] EIS,’ and (2) the new alternative isF RIENDS OF A NIMALS V

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‘ qualitatively within the spectrum of alternatives that were

discuss ed in the [original EIS].’” Id.

Friends argues that FWS had to issue a Supplemental

EIS under either prong of § 1502.9(d)(1). First, Friends maintains that FWS made “substantial changes” to the “heart” of the barred owl removal experiment because the goal of the experiment was to conserve the northern spotted owl but the permits authorized the take of spotted owls. Second, Friends contends that the specifics of each permit and Safe Harbor Agreement constitute “significant new

information” that was not considered in the initial EIS. We disagree on both points.

First, the incidental take of northern spotted owls

aut horized by the permits is only a “minor variation” of the broader barred owl removal experiment analyzed in the original EIS. The central component of the action was and

still is the removal of barred owls from treatment areas. The permits help the remov al of barred owls. Though FWS stated that the permits would allow the experiment to proceed in the most efficient and complete manner, the experiment would still be possible without access to any

non

- federal lands. We thus agree with FWS that the permits were an ancillary aspect of the experiment and constitute a

“minor variation.” See Russell , 668 F.3d at 1048

– 49 (holding supplementation not required where variation is a “secondary rather than primary” aspect of the action).

Additionally, the permits an d Safe Harbor Agreements were clearly “within the spectrum of alternatives” discussed

in the 2013 EIS. Id. at 1048. In the original EIS, FWS stated that “[w]here possible, we would seek cooperation from nonfederal landowners,” although “nonfederal lands would be included in the active experiment only if the landowners are willing.” Thus, the EIS adequately contemplated FWS’26 F RIENDS OF A NIMALS V

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later issuance of the permits. And because issuance of the permits ultimately depended on the cooperation of non

federal parties, i t “would be incongruous” with NEPA to conclude FWS was without power to proceed with the experiment until such specifics of the Safe Harbor Agreements were fully fleshed out and assessed in a Supplemental EIS

. Cf. Robertson v. Methow Valley Citizens

Counc il , 490 U.S. 332, 352

– 53 (1989).

We are also satisfied that FWS conducted the required “hard look” review in determining that the permits were not environmentally significant. See Cal. ex rel. Imperial Cty. Air Pollution Control Dist. v. U.S. Dep’t of the Interior , 767 F.3d 781, 792 (9th Cir. 2014). FWS conducted an EA for each permit. Each EA determined the authorized incidental take of northern spotted owls was likely to be small because it would only occur if spotted owls repopulated non

- baseline

site s after barred owls were removed. In other words, spotted owls would be taken only if the experiment managed to increase the spotted owl’s population and range. And FWS concluded that such gains would be temporary, as barred owls would resume displacing the spotted owls after the experiment. In FWS’ opinion, the environmental effects of the experiment were the same with or without the permits. A Supplemental EIS is not required.

b. The permits and the experiment need not be analyzed in a single EIS beca use they are not

“connected actions.”

An agency must discuss “connected actions” in a single

EIS. 40 C.F.R. § 1501.9(e)(1). Friends claims that the broader experiment and the permits were “connected actions.” As Friends sees it, each permit and SHA depe nds on the experiment’s informational benefit to satisfy the “net conservation benefit” requirement. Friends thus claims thatF RIENDS OF A NIMALS V

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FWS erred in analyzing the experiment separately from the permits and addressing each permit in isolation from the other permits.

Actions are connected if they “[c]annot or will not proceed unless other actions are taken previously or simultaneously” or are “interdependent parts of a larger action and depend on the larger action for their justification.”

Id . In applying § 1501.9(e )(1), we employ an “independent utility” test. Great Basin Mine Watch v. Hankins , 456 F.3d 955, 969 (9th Cir. 2006). “When one of the projects might reasonably have been completed without the existence of the other, the two projects have independent util ity and are not ‘connected’ for NEPA’s purposes.” Id. (citation omitted).

The permits are not “connected” to the broader experiment because the experiment would proceed without the permits. Friends claims that each permit’s legality depends on the experi ment. But access to any of the non

federal lands (let alone all of them) was not considered necessary by FWS to complete the experiment. While failure to gain access to non

- federal lands could delay the result of the experiment, it would not altogether i nhibit it. Put another way, “ one of the projects”

— the barred owl removal experiment

— would be completed without the other, meaning the experiment and the permits have “independent utility” and are not “connected.” Id. (emphasis added).

The permits are als o not “connected” to each other. Each permit has “independent utility” because the issuance of one permit did not depend on the issuance of any other permit. The EIS stated that each permit depended on “cooperation

from nonfederal landowners” and “nonfed eral lands would be included in the active experiment only if the landowners are willing.” FWS issued the permits individually to each28 F RIENDS OF A NIMALS V

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landowner, and irrespective of whether the other permits would issue, so the permits are not “connected.” Id.

Because the permits and the experiment were not “connected actions,” FWS did not have to assess their environmental impacts together in a single document. 8

CONCLUSION

We hold that FWS complied with the ESA and NEPA in issuing the permits and Safe Harbor Agreements. We

AFFIRM the district court’s grant of summary judgment for

FWS.

8 In the Roseburg

- Oxbow final EA, FWS analyze d the cumulative effects of the Roseburg

- Oxbow, Weyerhaeuser, and Oregon SHAs to “ensure a robust NEPA analysis.”