ESA/NEPA: Federal Appellate Court Addresses Challenge to Bureau of Land Management Timber Sales

Summary and links here.

The United States Court of Appeals for the Ninth Circuit (“Ninth Circuit”) addressed in a November 25th Memorandum a judicial challenge to the United States Bureau of Land Management (“BLM”) North Landscape Project (“North Project”)in the State of Oregon. See Kalamath-Siskiyou Wildlands Center, et al., v. Bureau of Land Management, 2022 WL 17222416.

The judicial challenge alleged National Environmental Policy Act (“NEPA”) and Endangered Species Act (“ESA”) violations.

The North Project is described as BLM’s site-specific management approach for conducting annual timber sales in the Klamath Falls Resource Area in accordance with the 2016 Southwestern Oregon Resource Management Plan and Oregon & California Revested Lands Act.

3 thoughts on “ESA/NEPA: Federal Appellate Court Addresses Challenge to Bureau of Land Management Timber Sales”

  1. “Although the North Project may preclude reoccupancy of NSOs in the action area for a prolonged period, habitat degradation from adverse effects does not always “equal harm” sufficient to constitute incidental taking.” So what does “preclude reoccupancy” mean? If there is not excess habitat (which is highly likely the case), it means the owls that would have occupied this habitat will not be able to find habitat or therefore reproduce, and I think this would be considered “significantly impairing essential behavioral patterns, including breeding, feeding or sheltering …” – which constitutes “harm.” (The cited cases do not contradict this.)

  2. This is one of my cases. You’re right, Jon: FWS admitted in the biop that precluding occupancy (because there would not be sufficient habitat) for more than 100 years would result in the impairment of essential owl behavioral patterns. Sounds like harm to me (and you?).

    But harm isn’t always take, and the caselaw supports that conclusion.

    Here, though, the project area contains owls today but will not contain owls in 10 years, once the logging is complete. That sounds like take to me, but obviously not to the Ninth Circuit.

    • The definition of “take” in ESA is, “to harass, harm ….”
      The definition of “harm” in the ESA regulations, “may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.”
      The 9th Circuit previously said this (NWF v. BN): “To regulate habitat degradation that merely retards recovery of a depleted species, “[plaintiff] would have to show significant impairment of the species’ breeding or feeding habits and prove that the habitat degradation prevents, or possibly, retards, recovery of the species.” And, “habitat modification does not constitute harm unless it “actually kills or injures wildlife” (Defenders v. Bernal).

      In Defenders, there were no pygmy owls in the actual construction site, and no proof of indirect harm (not sure what the NWF case said). That suggests that proven displacement would have been considered take. Are you saying that there is a precedent for finding that displacement due to loss of habitat does not constitute take – or is this a first?


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