## Facts

- A wildfire burned roughly 48,000 acres in southern Oregon’s Klamath Mountains.
- The Bureau of Land Management approved the Douglas Complex Fire Recovery Project, including salvage logging of about 1,600 acres of fire-killed or injured trees, after an environmental assessment and a finding of no significant impact.
- Because the project could affect the threatened northern spotted owl and its critical habitat, BLM initiated Endangered Species Act (ESA) § 7 consultation with the U.S. Fish and Wildlife Service (FWS).
- FWS issued a biological opinion concluding the project would likely cause incidental take (estimated at 14 adults and up to 10 juveniles at seven sites) but was not likely to jeopardize the species or adversely modify critical habitat.
- Environmental organizations sued under the ESA and Administrative Procedure Act (APA), arguing the biological opinion was unlawful, and sought a preliminary injunction to stop the project.
- The district court denied preliminary injunctive relief for failure to show a likelihood of success on the merits; plaintiffs appealed.

## Issues

1. Whether FWS’s no-jeopardy biological opinion was arbitrary and capricious under the ESA and APA, including its treatment of (a) barred owls’ effects on spotted owl detectability in surveys and (b) scientific information on post-fire spotted owl habitat use and salvage logging impacts.
2. Whether the district court abused its discretion by denying a preliminary injunction.

## Decision

- The Ninth Circuit affirmed the denial of a preliminary injunction.
- The court held plaintiffs did not show a likelihood of success because the biological opinion reasonably relied on the best available scientific information and was not arbitrary or capricious.
- The court concluded FWS adequately considered barred owl interference with detectability and reasonably evaluated competing post-fire habitat studies, including potential shifts in owl habitat use after wildfire.
- Given the lack of likely success on the merits, the district court did not abuse its discretion in refusing to enjoin the project.

## Legal Principles

- Under the ESA and APA, a biological opinion is set aside only if it is arbitrary, capricious, an abuse of discretion, or otherwise unlawful.
- Courts give substantial deference to an agency’s technical and scientific judgments; the court’s role is to assess reasonableness and whether the agency explained a rational connection between the record and its conclusions.
- The ESA “best available scientific information” requirement obligates the agency to consider and reasonably evaluate available data, not to adopt a challenger’s preferred methodology or the most protective interpretation where the science is disputed.
- A preliminary injunction requires, at minimum, a showing of likelihood of success on the merits; failure to establish that element supports denial even in ESA litigation.

## Conclusion

The Ninth Circuit upheld FWS’s no-jeopardy determination for the post-fire salvage-logging project as a permissible exercise of agency scientific judgment based on the best available science, and it affirmed the district court’s denial of preliminary injunctive relief.


Cascadia Wildlands v. Thrailkill, 806 F.3d 1234 (9th Cir. 2015)