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FOR PUBLICATION
*
The Honorable Matthew F. Kennelly, United States District Judge
for the Northern District of Illinois, sitting by designation.
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SUMMARY **
Environmental Law
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.
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COUNSEL
OPINION
LEE, Circuit Judge:
BACKGROUND
I. Background
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).
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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
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).
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STANDARD OF REVIEW
ANALYSIS
5
While the Safer Harbor Policy underwent a notice-and-comment
process, it was not codified in the Code of Federal Regulations.
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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
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whether the Policy and other guidance carry the force of law because
FWS in any event complied with both.
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CONCLUSION
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.”
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Cite this Entry
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