FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FRIENDS OF ANIMALS,

Plaintiff-Appellant,

v.

UNITED STATES FISH AND WILDLIFE 

SERVICE, an agency of the United 

States; MARTHA WILLIAMS, 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

Appeal from the United States District Court

for the District of Oregon

Ann L. Aiken, District Judge, Presiding

Argued and Submitted November 17, 2021

Pasadena, California

Filed March 4, 2022

Before: Johnnie B. Rawlinson and Kenneth K. Lee, Circuit 

Judges, and Matthew F. Kennelly,* District Judge.

Opinion by Judge Lee

* The Honorable Matthew F. Kennelly, United States District Judge 

for the Northern District of Illinois, sitting by designation.
2 FRIENDS OF ANIMALS V. USFWS

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 experiment, 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.

Affirming 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.
FRIENDS OF ANIMALS V. USFWS 3

it allowed the agency to obtain critical information to craft a 

policy to protect threatened 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.

The 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 

contemplated 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 Attorney 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 FRIENDS OF ANIMALS V. USFWS

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 best 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 hope 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 northern 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 prohibits 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 conservation 

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 conservation 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 also 
FRIENDS OF ANIMALS V. USFWS 5

hold that FWS did not have to conduct a supplemental 

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 subspecies 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. Since 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 the 

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 habitats 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 FRIENDS OF ANIMALS V. USFWS

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 information 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 areas” 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. 
FRIENDS OF ANIMALS V. USFWS 7

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 actions 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 impact 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 that 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. See Update to the Regulations 

Implementing the Procedural Provisions of the National Environmental 

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. The 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). If 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 FRIENDS OF ANIMALS V. USFWS

spotted owl demographic performance” because of 

decreased competition from the barred owl. More broadly, 

the major benefit of the experiment would be obtaining data 

necessary 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 experiment, 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 determining 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 endangered 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 implementing 
FRIENDS OF ANIMALS V. USFWS 9

regulations 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 the 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 Agreement 

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 for 
10 FRIENDS OF ANIMALS V. USFWS

issuing permits. See Announcement of Final Safe Harbor 

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 nonfederal landowners to gain access to their lands. Though not 

strictly necessary to complete the experiment, such access 

would help FWS complete the experiment 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 four 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 FWS 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 the 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).
FRIENDS OF ANIMALS V. USFWS 11

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 incidental 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.

As 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 

strategy.”

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 

determined 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 would 
12 FRIENDS OF ANIMALS V. USFWS

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. Sheehan, 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 Coast 
FRIENDS OF ANIMALS V. USFWS 13

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) issuing 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, 

Friends 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 ambiguous, the district court applied 

Auer4 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 FRIENDS OF ANIMALS V. USFWS

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 “resident” 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 foraging, 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 nonbaseline sites did “not constitute a substantial change 

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

court also 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.
FRIENDS OF ANIMALS V. USFWS 15

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 ‘arbitrary 

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 made.” 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 reasonable 

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 significant 

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) (defining 
16 FRIENDS OF ANIMALS V. USFWS

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

modification of habitat).

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 provide 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 

ambiguous—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, all 
FRIENDS OF ANIMALS V. USFWS 17

activities associated with scientific resources 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 assume 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” includes 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 & DeltaMendota 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 benefits 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, taking into account the length of the 

Agreement and any off-setting adverse 

effects attributable to the incidental taking 
18 FRIENDS OF ANIMALS V. USFWS

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 

benefit” 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 the 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 

interpretation, 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.
FRIENDS OF ANIMALS V. USFWS 19

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 single 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 stated 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 

speculative 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 unless that pronouncement carries 

the force of law. See W. Radio, 79 F.3d at 900. Here, we need not decide 
20 FRIENDS OF ANIMALS V. USFWS

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 property 

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 

authorizations—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’ methodology 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” argument 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.
FRIENDS OF ANIMALS V. USFWS 21

on by Friends explicitly 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 at 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 “floaters” (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 territory” 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 special 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 FRIENDS OF ANIMALS V. USFWS

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 Opinion 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 to 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, assuming 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 potential 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 of critical habitat. 
FRIENDS OF ANIMALS V. USFWS 23

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 their 

“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 

affected. 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 FRIENDS OF ANIMALS V. USFWS

a. FWS did not 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 to 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 

environmental 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 Quality 

(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 circumstances 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 

§ 1502.9(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 framework, 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 is 
FRIENDS OF ANIMALS V. USFWS 25

‘qualitatively within the spectrum of alternatives that were 

discussed 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 

authorized 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 removal 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 and 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 FRIENDS OF ANIMALS V. USFWS

later issuance of the permits. And because issuance of the 

permits ultimately depended on the cooperation of nonfederal parties, it “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 

Council, 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 

sites 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 because 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 depends 

on the experiment’s informational benefit to satisfy the “net 

conservation benefit” requirement. Friends thus claims that 
FRIENDS OF ANIMALS V. USFWS 27

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 utility 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 experiment. But access to any of the nonfederal 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 inhibit 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 also 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 “nonfederal lands would 

be included in the active experiment only if the landowners 

are willing.” FWS issued the permits individually to each 
28 FRIENDS OF ANIMALS V. USFWS

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 analyzed the cumulative 

effects of the Roseburg-Oxbow, Weyerhaeuser, and Oregon SHAs to 

“ensure a robust NEPA analysis.”