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Southwest Center for Biological Diversity v. Norton

July 29, 2002

SOUTHWEST CENTER FOR BIOLOGICAL DIVERSITY, ET AL., PLAINTIFFS,
v.
GALE NORTON, SECRETARY, U.S. DEPARTMENT OF INTERIOR, ET AL., DEFENDANTS.



The opinion of the court was delivered by: John M. Facciola United States Magistrate Judge

MEMORANDUM OPINION

This matter is before me for a Report and Recommendation pursuant to LCvR 72.3. I herein take up the parties' cross motions for summary judgment. Plaintiffs, a group of environmental organizations, bring this action under the Endangered Species Act ("ESA"), 16 U.S.C.A. § 1531 et seq. (2000), to compel the listing of the Queen Charlotte goshawk as an endangered or threatened species. Because the best scientific data available indicates that this subspecies is not endangered or threatened, the decision to not list this subspecies based on its status in southeast Alaska is neither arbitrary nor capricious, and I shall recommend the denial in part of plaintiffs' motion for summary judgment and the granting in part of defendants' cross-motion. On the other hand, because the Fish and Wildlife Service ("FWS") failed to reach a decision on whether the Queen Charlotte goshawk is endangered or threatened in Vancouver Island, a significant portion of the subspecies' range, I shall recommend that the case be remanded for this limited purpose.

BACKGROUND

Queen Charlotte Goshawk

The Queen Charlotte goshawk (Accipiter gentilis laingi) ("goshawk") is a subspecies of the Northern goshawk (Accipiter gentilis), a forest-dwelling raptor found throughout the northern hemisphere. *fn1 The subspecies is named for the Queen Charlotte Islands of British Columbia, where it was originally identified. Although information is spotty, its range is believed to extend along the Pacific coast from the United States - Canadian border, north through Vancouver Island and the Queen Charlotte Islands in British Columbia and the Admiralty Islands in southeast Alaska. A.R. *fn2 II.039 at 22; A.R.III.B.011 at 3-4. The goshawk is distinguished morphologically from the Northern goshawk primarily by its smaller size and darker plumage. A.R.III.B.011 at 6. In addition, the goshawk has heavier streaking along its feather shafts and a dark cap over its shoulders. Id. at 6.

The goshawk exhibits a strong preference for productive old-growth forests. *fn3 A.R.II.039 at 37, 50-53. They have been found to nest and forage in forests with particularly dense canopies. Id. at 52. The subspecies' affinity for such forests appears related to its success in predation. Where a large amount of brush and smaller trees predominate, the goshawk is not able to maneuver through the understory. It also appears that productive old-growth forests host an abundance of the goshawk's preferred prey. Id. at 61. In addition to preferring older forests, goshawks were found to avoid areas that had been heavily logged, or clearcut. Id. at 66. The conversion of productive old-growth forest to clearcut and early seral stage forest is therefore considered particularly harmful to the goshawk. Under a traditional 100-year rotation schedule for timber harvest, the forest does not mature enough to support goshawk populations. A.R.III.A.07 at 33-34. *fn4

By all accounts, population size estimates of the goshawk are highly uncertain. The Conservation Assessment cites a handful of studies that estimated a range of anywhere from 100 to 800 pairs in southeast Alaska. A.R.II.039 at 22 (citing Crocker-Bedford 1990, 1994 and Iverson 1990).

In the discussion among the goshawk experts panel in July 1997, panelist Ted Swem noted that by extrapolating from the five known nests on Douglas Island as a typical density, 800-1000 pairs not an unreasonable estimate for southeast Alaska. A.R.III.B.009 at 9. No matter what the precise population numbers, it is well-established that the population density of the subspecies is quite low, especially compared with densities of the Northern goshawk in other parts of North America.

A.R.III.A.007 at 24-25. Finally, although there are no baseline or comparative statistics, scientists are confident in assuming that the goshawk numbers are declining due to the loss of productive old-growth forest in southeast Alaska and in British Columbia. A.R.II.039 at 66.

Endangered Species Act

The ESA defines a species (including subspecies) as "endangered" if it is "currently in danger of extinction throughout a significant portion of its range . . . ." § 1532(6). A species is "threatened," in turn, if it "is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." § 1532(20). A species may be listed as threatened or endangered based on five factors enumerated in the statute:

(A) the present or threatened destruction, modification, or curtailment of its habitat or range;

(B) overutilization for commercial, recreational, scientific, or educational purposes;

(C) disease or predation;

(D) the inadequacy of existing regulatory mechanisms; or

(E) other natural or manmade factors affecting its continued existence. § 1533(a)(1). FWS must find the presence of only one of the above factors in order for a species to be listed. In addition, FWS must rely solely on the "best scientific and commercial data available" in arriving at a listing decision. § 1533(b).

There are two avenues by which a species is listed as endangered or threatened. First, FWS itself may initiate the listing. § 1533(a)(1), (b)(2). Alternatively, an "interested person" may petition FWS to add (or remove) species from either the endangered or threatened species lists. § 1533(b)(3)(A).

Once FWS receives such a petition, it has 90 days to decide whether it presents "substantial scientific or commercial information indicating that the petitioned action may be warranted." Id. If so, FWS must "promptly commence a review of the status of the species concerned." Id. Within 12 months after the petition is filed, FWS must determine that either (1) the petitioned action is warranted, in which case it must publish a proposed rule designating the species for protection; (2) the petitioned action is not warranted; or (3) the petitioned action is warranted but immediate promulgation of a rule is precluded by other pending proposals. § 1533(b)(3)(B). Findings that a petitioned action is not warranted or is "warranted but precluded" are subject to judicial review. § 1533(b)(3)(C)(ii).

The listing of a species is a significant event, for it triggers a series of protective measures designed to restore the species to a healthy population level. Such protections include the designation and acquisition of critical habitat, prohibitions on killing or harming, and mandatory consultations by other federal agencies to ensure that the species is not being harmed by an agency action. §§ 1533(b)(6)(C), 1534, 1538(a), 1536.

FWS is also required to establish a formal recovery plan for every listed species. § 1533(f). In sum, these protections make the ESA a profoundly important (and controversial) statute. In the words of the Supreme Court itself, the ESA is "the most comprehensive legislation for the preservation of endangered species ever enacted by any nation." Tennessee Valley Authority v. Hill, 437 U.S. 153, 180 (1978).

Tongass National Forest and the TLMP

The Tongass National Forest ("TNF") contains roughly 16.9 million acres, covering over 85 percent of southeast Alaska. A.R.II.039 at 1. Of this total acreage, 59 percent is classified as forested land (at least 10 percent tree cover). Id. Nearly 30 percent, or 5.05 million, of the 16.9 million acres is classified as productive old-growth forest, the goshawk's preferred habitat. Id. at 5.

The commercial harvest of productive old-growth forest in southeast Alaska has occurred since the late 1800's and has increased in intensity over the last several decades. Between 1909 and 1995, about 450,000 acres of productive old-growth forest (or 7% of the total) was harvested in TNF, with the vast majority of this amount harvested since 1954, when industrial-scale logging was introduced. Id. at 7. Another 450,000 acres outside TNF have also been harvested, leading to a total loss of 900,000 acres of productive old-growth forests in southeast Alaska. Id. at 66. The loss of this habitat is assumed to be limiting the goshawk's population levels. Id. at 66.

TNF, like all national forests, is subject to the National Forest Management Act, 16 U.S.C.A. § 1600 et seq. (2000), which requires each national forest to promulgate a Land Management Plan. This plan outlines how the various and often competing recreational, natural resource protection, and commercial uses of the forest will be balanced. See 16 U.S.C.A. § 1604(a), (b). The plan must be updated periodically, and at least once every 15 years. § 1604(f)(4), (5). Throughout most of the events leading up to this lawsuit, TNF was governed by the 1979 Tongass Land Management Plan ("TLMP"). In May 1997, the Forest Service issued a revised TLMP.

Overall, the 1997 TLMP allows the continued harvest of over 2.5 million acres of productive old-growth forest in TNF. A.R.II.097(a) at 3, Table 1. Projections of future cuts show that another 8% of TNF's original productive old-growth forest will be harvested by 2055. A.R.III.A.07 at 36. At the same time, when combined with other federal and state protections, the TLMP prohibits logging on 75% of the original productive old-growth forest in southeast Alaska. A.R.III.B.011 at 31.

The 1997 TLMP adds several new mechanisms for protecting a range of species that thrive in productive old-growth habitat, including the goshawk. See A.R.II.096, 097(a). The plan calls for a network of small, medium and large old-growth reserves in which all timber harvesting is prohibited. A.R.II.096 at 2-60. Although the reserves were not established with only the goshawk in mind, they are intended to benefit this subspecies by allowing productive old-growth forests to mature and remain intact. The non-reserve areas, known as the "matrix," are subject to a variety of timber uses and protections. For the most part, the plan retains the 100-year rotation schedule for harvested matrix land. A.R.II.096 at 2-66. The TLMP also establishes a protection zone of 100 acres around each known goshawk nest in the matrix, far below the 300-600-acre recommendation in the Assessment. A.R.II.096 at 4-91. Finally, certain harvest restrictions apply in matrix lands that are adjacent to rivers, marine shorelines, and scenic areas.

At the heart of the present dispute is whether the protections embedded in the 1997 TLMP are adequate to prevent the goshawk from becoming extinct. Plaintiffs contend that even with the reserve and matrix protections, the goshawk is still quite vulnerable. FWS, in contrast, asserts that the added protections are sufficient to ensure the goshawk's persistence.

Timber Harvest and Goshawk Protection Efforts in British Columbia

Roughly half of the goshawk's range is located in the 37.25 million acres of coastal British Columbia. Thus, timber harvesting and goshawk protection programs were considered in the revision of the TLMP and in FWS's listing decision. Unfortunately, information on goshawk ecology in British Columbia is even scarcer than for southeast Alaska. As in southeast Alaska, it is unknown how many goshawks exist in British Columbia, although survey efforts suggest that densities are low. A.R.III.A.07 at 25. Intensive searches on Vancouver Island from 1994 to 1996, for example, turned up only 19 nests. Id. at 25.

In addition, data on timber management in British Columbia is more limited than for southeast Alaska. Instead of the detailed projections of future timber harvests that were available for TNF, FWS was forced to rely on general description of a management strategy. A.R.III.A.07 at 43. This strategy, like TNF's 1997 TLMP, incorporates both a reserve system and a matrix. While information from British Columbia authorities was slow in arriving, FWS eventually concluded that the combination of reserve ...


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