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Northern District of California Vacates Incidental Take Permits, Biological Opinion, and Environmental Impact Statement, but Refuses to Grant Injunctive Relief


In Klamath-Siskiyou Wildlands Ctr. v. Nat’l Oceanic & Atmospheric Admin., 2015 U.S. Dist. LEXIS 70622, the Northern District of California vacated two Incidental Take Permits (ITPs), an Environmental Impact Statement (EIS), and a biological opinion, but refused to enjoin the defendants from pursuing their project. The matter involved two ITPs that the Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) granted to Fruit Growers.

Plaintiffs challenged a 50-year ITP to take northern spotted owls, granted by FWS, and a 50-year ITP to take to take coho salmon, granted by NMFS. In preparing the ITPs, the agencies and Fruit Growers prepared an EIS, and both agencies prepared biological opinions. Both biological opinions concluded that neither species was jeopardized nor was their habitat adversely affected by the grant of the permits.

The court vacated the agencies’ decisions to grant the ITPs because the court held: (1) FWS violated ESA by factoring the conservation efforts of non-permit applicant U.S. Forest Service into its § 10 analysis of Fruit Growers’ mitigation efforts; (2) NMFS arbitrarily and capriciously issued an ITP to Fruit Growers to take coho salmon; and (3) the agencies failed to conduct a cumulative impact analysis on Fruit Growers’ timber harvest projects, use of herbicides, and water withdrawal projects.

While the court acknowledged that the EIS included conservation measures that may benefit the species, the court rejected the agencies’ argument that these benefits outweighed the deficiencies in the in the agencies’ ITPs, EIS, and biological opinion.  The court also rejected the argument that the potential level of harm Fruit Growers and the surrounding community faced did not rise to the level of concrete harm necessary to prevent vacatur.

Nevertheless, the court rejected plaintiffs request for injunction relief.  Injunctive relief is an “extraordinary remedy” that is often avoided if a less drastic remedy can redress the situation. Monsanto Co. v. Geertson Seed Farms (2010) 561 U.S. 139, 165-166. But, when injury to the environment is sufficiently likely, the balance of harms favors the injunction to protect the environment. Amoco Prod. Co. v. Will. of Gambell (1987) 480 U.S. 531, 545. Even with this lower bar for environmental protection injunctions, the court still refused the injunction because the court held plaintiffs had not sufficiently shown that the northern spotted owl’s continued existence was jeopardized if logging continued.



dateJune 15th, 2015byby


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