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Courthouse News Service: "Greens Win One for Salmon and Owls"

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June 2, 2015 -- A federal judge vacated 50-year "incidental take permits" for timber harvesting in Northern spotted owl and Coho salmon habitat in a wilderness area.

http://www.courthousenews.com/2015/06/02/greens-win-one-for-salmon-owls.htm

By Rebekah Kearn

SAN FRANCISCO (CN) - A federal judge vacated 50-year "incidental take permits" for timber harvesting in Northern spotted owl and Coho salmon habitat in a wilderness area.

Plaintiffs' attorney Wyatt Golding told Courthouse News that he and his clients are excited about the May 29 ruling.

"It's a win for the spotted owls and Coho salmon," Golding said. "The judge is right that the permits and environmental analysis violated the Endangered Species Act."

Designated in 1984, the Siskiyou Wilderness stretches across 182,802 acres and three national forests in Del Norte, Siskiyou and Humboldt counties in Northern California. It is home to several species of conifers, including the rare Alaska cedar, several rare fish and wildlife species, such as the Coho salmon and spotted owl, and a vast array of old-growth forests.

In 2009, defendant-intervenor Fruit Growers Supply Company applied to the National Marine Fisheries Service and the Fish and Wildlife Service for 50-year permits to take, meaning to harm or kill, Northern spotted owl and Coho salmon in the course of timber harvesting on company land.

Fruit Growers and the federal agencies developed a habitat conservation plan and environmental impact statement purporting to mitigate harm to the animals. The agencies issued biological opinions that concluded the permits would not jeopardize the species or their critical habitats.

Klamath-Siskiyou Wildlands Center, the Center for Biological Diversity and the Klamath Forest Alliance challenged the permits and the environmental studies in August 2013.

Among other things, the groups argued that the documents relied on "speculative" assumptions about the habitat conservation plan's ability to protect spotted owls despite not knowing whether the nonparty U.S. Forest Service planned to log in the sites protected by the permits.

The groups also claimed that the habitat conservation plan erroneously concluded that Fruit Growers could protect Coho salmon from sediment discharge though it did not know how much would be discharged.

The court found in April this year that the services acted arbitrarily and capriciously in issuing two of the permits based on invalid no-jeopardy findings in the biological opinions and insufficient analysis of the cumulative impacts of the permits in the environmental impact statement.

The plaintiffs moved to vacate the remaining permits, and the Fisheries Service's biological opinion, the environmental impact statement, and the records of decision. They also wanted Fruit Growers to account for any take that has already occurred under the invalid permits.

In response, the defendants said the documents should be remanded to the agencies for correction because vacatur would be more disruptive to conservation efforts than the errors in the documents.

U.S. Magistrate Judge Nathanael Cousins sided mostly with the plaintiffs on Friday, vacating the incidental take permits for both species, and the final environmental impact statements from both agencies.

Cousins was not persuaded by the government's claim that the errors could easily be corrected on remand.

Incidental take permits for spotted owls were irreparably flawed because the Fish and Wildlife Service attributed 3,400 acres of owl conservation areas to Fruit Growers when that land actually belongs to the Forest Service, Cousins found.

And the services seriously erred by allowing Fruit Growers to take Coho salmon without studying the short-term impacts on the species, which has a 3-year life cycle, and by failing to analyze the cumulative impacts of Fruit Growers' logging operations.

"These errors involve more than mere technical or procedural formalities that the services can easily cure. Instead, the substantive errors under the ESA [Endangered Species Act] include, among others, the very factors FWS chose to use as the basis for its conservation-value calculations for 82 owl circles. And the court cannot simply accept defendants' reassurances that they can readily cure these errors," Cousins wrote.

He also rejected arguments that vacatur would harm spotted owls and Coho salmon by stripping protections under the habitat conservation plan, noting that 12 spotted owls have already been taken under permits that were not ESA-compliant.

Fruit Growers' argument that vacatur will cause it to suffer economic hardship by preventing it from salvaging thousands of acres of burned forest on its property fails because the company has stated that without the conservation plan, it would immediately harvest timber from conservation areas, the ruling states.

Cousins ordered the spotted owl and Coho salmon take permits and related documents vacated, but declined to vacate the records of decision because there is no evidence they were arbitrary or capricious.

He refused to enjoin Fruit Growers from harvesting any timber in the area on the grounds that the plaintiffs could not demonstrate irreparable harm to either threatened species.

For similar reasons, Cousins found that the defendants need not account for any take that already has occurred.

Attorney Golding said that Fruit Growers can log on almost all of its land, except in areas where the protected species live.

"They must stop harming these species because it's out of permit," he said.

"The ruling sends the message that people are watching and the Endangered Species Act has real meaning. Companies need to respect the protections it has for endangered species," he added.

Scott Birkey and Andrew Sabey with Cox, Castle & Nicholson represented Fruit Growers.

Birkey told Courthouse News in an email that he and Sabey are reviewing the ruling and "evaluating our options."

Golding, with the Washington Forest Law Center in Seattle, represented Klamath-Siskiyou Wildlands Center and Klamath Forest Alliance.

In-house attorney Justin Augustine represented the Center for Biological Diversity. Requests for comment were not immediately returned.