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Gifford Pinchot Task Force v. United States Fish & Wildlife Service

United States Court of Appeals, Ninth Circuit
Aug 6, 2004
387 F.3d 968 (9th Cir. 2004)

Summary

permitting tiering of biological opinions

Summary of this case from All. for Wild Rockies v. Marten

Opinion

No. 03-35279.

Argued and Submitted June 7, 2004.

Filed August 6, 2004. Amended October 28, 2004.

Stephanie M. Parent, Pacific Environmental Advocacy Center, Portland, OR, for the plaintiffs-appellants.

R. Justin Smith, United States Department of Justice, Environmental and Natural Resources Division, Washington, D.C., for the defendant-appellee.

James P. Walsh, Davis Wright Tremaine LLP, San Francisco, CA, for defendant-intervenor-appellee American Forest Resource Council.

Appeal from the United States District Court for the Western District of Washington; Franklin D. Burgess, District Judge, Presiding. D.C. No. CV-00-05462-FDB.

Before BRUNETTI, McKEOWN, and GOULD, Circuit Judges.


ORDER

The Appellants' Motion for Technical Correction of Language in the Opinion is hereby GRANTED.

The opinion filed on August 6, 2004 and published at 378 F.3d 1059, is AMENDED as follows.

The final sentence of Subsection I.A. on page 1063 states:

If jeopardy or adverse modification cannot be avoided, the BiOp would exempt the action agency from Section 9's prohibition on taking and the strict civil and criminal penalties associated with such unlawful takings.

That final sentence of Subsection I.A. on page 1063 is deleted in its entirety and replaced with the following sentence:

If the BiOp concludes that jeopardy or adverse modification cannot be avoided, Section 7(g) of the ESA provides that the action agency may apply for an exemption from Section 9's prohibition on taking and the strict civil and criminal penalties associated with such unlawful takings.
IT IS SO ORDERED.


Summaries of

Gifford Pinchot Task Force v. United States Fish & Wildlife Service

United States Court of Appeals, Ninth Circuit
Aug 6, 2004
387 F.3d 968 (9th Cir. 2004)

permitting tiering of biological opinions

Summary of this case from All. for Wild Rockies v. Marten

Endorsing the "proxy on proxy" approach in the context of the ESA noting that "[i]f the modeling approach was reasonable in ensuring an accurate population estimate of a species for N[ational] F[orest] M[anagement] A[ct] purposes, it follows that a similar modeling approach to estimate species population for ESA purposes is permissible"

Summary of this case from Ctr. for Biological Diversity v. Nat'l Marine Fisheries Serv.

stating that the "test for whether a habitat proxy is permissible . . . is whether it reasonably ensures that the proxy results mirror reality"

Summary of this case from Ctr. for Biological Diversity v. Nat'l Marine Fisheries Serv.

In Gifford Pinchot Task Force, the FWS relied on the habitat allocation of the forest plan (especially LSRs) to support its finding that the proposed timber projects would not jeopardize the northern spotted owl under the Endangered Species Act.

Summary of this case from Environmental Protection Information Center v. Blackwell

In Gifford Pinchot Task Force, the Ninth Circuit allowed the FWS to rely on the projections and assumptions of the forest plan in its jeopardy analysis precisely because "such monitoring is currently being conducted with a report due in 2004."

Summary of this case from Environmental Protection Information Center v. Blackwell

In Gifford, however, unlike in this case, the Forest Plan at issue had already survived a legal challenge and the Ninth Circuit specified that it was not an ordinary land management plan but rather a particularly thorough and complex one.

Summary of this case from Buckeye Forest Council v. United States Forest Service
Case details for

Gifford Pinchot Task Force v. United States Fish & Wildlife Service

Case Details

Full title:GIFFORD PINCHOT TASK FORCE, an Oregon non-profit organization; Cascadia…

Court:United States Court of Appeals, Ninth Circuit

Date published: Aug 6, 2004

Citations

387 F.3d 968 (9th Cir. 2004)

Citing Cases

Nat. Res. Def. Council v. Bernhardt

Id. at 781. The Bureau re-initiated consultation after the Ninth Circuit's decision in Gifford Pinchot Task…

Ctr. for Biological Diversity v. Nat'l Marine Fisheries Serv.

While the BiOp's terms and conditions require that NMFS develop a baseline estimate of herbivorous fish…