oregon natural resources council v allen - Sierra Forest Legacy

1910 OREGON NATURAL RESOURCES v. ALLENacres of nesting, roosting, and foraging critical habitat,degrading 2,168 acres of nesting, roosting, and foraging criticalhabitat, removing 563 acres of dispersal 4critical habitatand degrading 2,329 acres of dispersal critical habitat. Nevertheless,the BiOp concluded, the anticipated harvest “[was]not likely to jeopardize the existence of the spotted owl . . .and [was] not likely to destroy or adversely modify designatedcritical habitat for the spotted owl.”When the FWS concludes that an action will not jeopardizethe existence of a listed species or adversely modify its habitat,but the project is likely to result in incidental takings oflisted species, the FWS must provide a written statement withthe BiOp that authorizes such takings. 16 U.S.C. § 1536(b)(4),(o); Ariz. Cattle Growers’ Ass’n v. U. S. Fish & Wildlife, 273F.3d 1229, 1233 (9th Cir. 2001). The Incidental Take Statementmust: (1) specify the impact of the incidental taking onthe species; (2) specify the “reasonable and prudent measures”that the FWS considers necessary or appropriate tominimize such impact; (3) set forth “terms and conditions”with which the action agency must comply to implement thereasonable and prudent measures (including, but not limitedto, reporting requirements); and (4) specify the procedures tobe used to handle or dispose of any animals actually taken. 16U.S.C. § 1536(b)(4); 50 C.F.R. § 402.14(i). As long as anytakings comply with the terms and conditions of the IncidentalTake Statement, the action agency is exempt from penaltiesfor such takings. 16 U.S.C. § 1536(o)(2). Thus, a BiOpwith a no-jeopardy finding effectively green-lights the proposedaction under the ESA, subject to the Incidental TakeStatement’s terms and conditions. See Bennett v. Spear, 520U.S. 154, 169-71 (1997) (noting that, while a BiOp is techni-4 According to the FWS, dispersal habitat consists of trees of adequatesize and canopy closure to protect owls from predators as they movewithin their range. 57 Fed. Reg. at 1,798. Although it may be marginal orunsuitable for nesting, roosting or foraging, dispersal habitat serves to linkowl subpopulations and blocks of owl nesting habitat. Id.