Seattle Audubon Society v. Evans

United States Court of Appeals for the Ninth Circuit · 1991 · Federal Courts

Federal CourtsNFMAESAMBTANEPAappropriations ridersagency deferenceviable populations

Facts

Environmental groups challenged logging in old-growth national forests affecting northern spotted owl habitat. After the Fish and Wildlife Service listed the owl as threatened under the ESA, the Forest Service revoked its prior NFMA-based owl viability standards and announced that actions involving the owl or its habitat would be governed by the ESA rather than 36 C.F.R. § 219.19. The district court ruled that the Forest Service still had to comply with NFMA viability planning requirements and enjoined timber sales in owl habitat until compliant regional guides were prepared. The district courts also rejected claims that habitat-destroying timber sales violated the MBTA, and one district court denied leave to replead NEPA claims previously barred by an annual appropriations provision.

Issue

Does listing the northern spotted owl as threatened under the ESA terminate the Forest Service's separate duty under NFMA and its regulations to plan for viable populations of the species? Does the MBTA's prohibition on taking migratory birds reach habitat destruction from timber sales? And did the annual appropriations provision barring certain NEPA challenges remain in force after it was not reenacted for fiscal year 1991?

Rule

NFMA regulations requiring the Forest Service to manage habitat to maintain viable populations of species, including identifying critical habitat and setting conservation objectives for threatened and endangered species, continue to apply after ESA listing; an agency cannot exempt itself from duties plainly imposed by law by choosing one applicable statute over another. Under the MBTA as construed here, "take" covers direct physical acts like pursuing, hunting, capturing, or killing, but not habitat destruction that only indirectly leads to bird deaths. Appropriations restrictions ordinarily last only for the fiscal year unless Congress clearly indicates a permanent substantive change.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

The Forest Service approved a habitat management program for a rare fox in national forests near Boise, Idaho. After the Fish and Wildlife Service listed the fox as threatened, the agency withdrew its prior forest-planning standards and announced that future actions affecting the fox would be governed solely by ESA consultation procedures, not by its NFMA viability regulations.

If a conservation group challenges that announcement, how should a court rule?

Explanation. The majority held that the Forest Service must comply with both the ESA and NFMA where both apply. Listing under the ESA triggers additional obligations but does not reduce the agency’s separate duty under NFMA regulations to plan for viable populations, identify critical habitat, and set conservation objectives for threatened and endangered species. The agency may not declare one statute exclusive when the governing laws and regulations show both apply. (Derived from Seattle Audubon Society v. Evans (1991).)