Sierra Club v. Salazar Lawsuit

7/31/2019 Sierra Club v. Salazar Lawsuit

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25 Washington Forest Law Center615 Second Avenue, Suite 360

Seattle, WA 98104(206) 223-4088

PAUL KAMPMEIER, WSBA # 31560

WYATT GOLDING, WSBA # 44412Washington Forest Law Center

615 Second Avenue, Suite 360

Seattle, Washington 98104

(206) 223-4088

Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

SIERRA CLUB, a California non-profitcorporation; and OLYMPIC FOREST

COALITION, a Washington non-profit corporation,

Plaintiffs,

v.

KEN SALAZAR, Secretary of the Department of

the Interior; and DAN ASHE, Director of the U. S.

Fish and Wildlife Service,

Defendants.

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Civ. No.

COMPLAINT FOR

DECLARATORY ANDINJUNCTIVE RELIEF

I. INTRODUCTION

1. This is an action against the Secretary of the Department of the Interior and the

Director of the U.S. Fish and Wildlife Service (collectively the Service), in their official

capacities. Plaintiffs allege that the Service violated the Administrative Procedure Act, 5 U.S.C.

701 et seq. (APA), the Endangered Species Act, 16 U.S.C. 1531 et seq. (ESA), and the

National Environmental Policy Act, 42 U.S.C. 4321 et seq. (NEPA), by authorizing the

Washington Department of Natural Resources to log more than 12,000 acres of protected

marbled murrelet habitat without notifying the public, accepting public comment, or conducting

environmental review of the proposed logging.

Case 3:12-cv-05669 Document 1 Filed 07/27/12 Page 1 of 24


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2. Marbled murrelets are dove-sized black and white birds that are in the same

family as puffins. Marbled murrelets are unique among seabirds because they live and forage on

Puget Sound and the Pacific Ocean but nest in older-growth forest stands. Pursuant to section 4

of the Endangered Species Act, 16 U.S.C. 1533, the Service listed marbled murrelets as a

threatened species in 1992. Since 2001, populations of marbled murrelets in Washington have

been declining at a rate of over 7% per year. At that rate of decline marbled murrelets could be

extirpated from Washington in 60-70 years.

3. Because logging operations can injure or kill marbled murrelets, something the

Endangered Species Act prohibits, the Washington Department of Natural Resources (DNR)

developed and obtained federal approval for a habitat conservation plan. See 16 U.S.C.

1539(a). The Washington Department of Natural Resources Trust Lands Habitat Conservation

Plan (the HCP) is a comprehensive forest management plan that includes management

strategies for both aquatic and terrestrial species affected by logging. For marbled murrelets, the

HCP includes an interim conservation strategy that is supposed to conclude with the adoption of

long-term marbled murrelet conservation strategies. As adopted in 1997, DNRs interim

marbled murrelet strategy strictly prohibited DNR from logging higher quality marbled

murrelet habitat in Southwest Washington until DNR developed the long-term marbled murrelet

conservation strategies required by the HCP. The Service approved the HCP in 1997, thereby

authorizing the incidental take of marbled murrelets that results from DNR logging in

accordance with the interim strategy.

4. DNR has not adopted the long-term marbled murrelet conservation strategies

required by the HCP. Notwithstanding that fact, on May 29, 2012, the Service approved an

amendment to the HCP and authorized DNR to log approximately 12,000 acres of higher



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quality marbled murrelet habitat in Southwest Washingtonapproximately 60% of the suitable

marbled murrelet habitat remaining in that part of the state. Under the interim strategy as it

existed before the amendment, the 12,000 acres of murrelet habitat subject to the amendment

was completely off-limits to timber harvest. The Service approved the amendment without

notifying the public, without inviting public comment, and without conducting environmental

review under the ESA or NEPA.

5. Plaintiffs seek declaratory and injunctive relief invalidating the amendment

because the Services decision threatens marbled murrelets nesting in the affected forests,

threatens murrelet populations in western Washington, and threatens to prevent DNR from

adopting long-term marbled murrelet conservation strategies that will meet the requirements of

the HCP. Plaintiffs also seek an order of the court requiring defendants to pay plaintiffs costs

and attorneys fees.

II. JURISDICTION AND VENUE

6. This action is brought pursuant to the Administrative Procedure Act, 5 U.S.C.

701 et seq. This Court has jurisdiction pursuant to 28 U.S.C. 1331 (federal question), 2201

(declaratory judgment), and 2202 (further relief).

7. Venue is properly vested in this Court under 28 U.S.C. 1391(e) because plaintiff

Olympic Forest Coalition resides and has its principal places of business in this district and no

real property is involved in this action. Venue is also appropriate under 28 U.S.C. 1391(e)

because personnel in the Services Lacy, Washington office approved the HCP amendment

challenged in this lawsuit.



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III. PARTIES

8. Plaintiff Sierra Club is a non-profit conservation group organized and existing

under the laws of the State of California. Sierra Club has tens of thousands of members in

Washington State and it maintains an office in Seattle, Washington. Since 1892, the Sierra Club

has worked to protect communities, wild places, and the planet. Through its resilient habitats

campaign, the Sierra Club is working to protect the Greater Puget Sound eco-region, which is

home to a stunning array of wildlife including marbled murrelets. The resilient habitats campaign

employs numerous methods to reduce the vulnerability of Greater Puget Sound ecosystems to

climate change, including applying science-based blueprints for building resilient habitats;

protecting adequate and appropriate spaces including core areas; preventing the additional loss

of, and restoring, key forest lands and coastal and nearshore environments; and protecting the

integrity of Puget Sound shoreline and habitat. The protection of marbled murrelets in western

Washington is an integral part of the Sierra Clubs resilient habitats campaign.

9. Plaintiff Olympic Forest Coalition is a non-profit volunteer conservation

organization incorporated under the laws of the State of Washington. The Olympic Forest

Coalition is dedicated to promoting the protection, conservation and restoration of natural forest

ecosystems and their processes on the Olympic Peninsula, including fish and wildlife habitat and

surrounding ecosystems. The programs of the Olympic Forest Coalition focus on educating

members of the public, officials, agencies, and other environmental, community and recreational

groups on issues of importance to help achieve these goals. The Olympic Forest Coalition works

to restore marbled murrelet populations throughout the State of Washington because it has

concluded that is the best wayand perhaps the only wayto ensure the continued presence of

healthy marbled murrelet populations in the forests and near-shore areas of the Olympic



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Peninsula.

10. Plaintiffs and their members reside near, visit, use, and/or enjoy areas in the State

of Washington, including forests and salt water areas in western Washington, utilized by marbled

murrelets for nesting, rearing, traveling and foraging. Plaintiffs and their members use and enjoy

these waters and forestlands for recreational, subsistence, scientific, aesthetic, spiritual,

commercial, conservation, and other purposes, including wildlife observation, study, and

photography, and they plan to continue doing so. Plaintiffs and their members derive benefits

from their use and enjoyment of Washingtons salt waters and forests and therefore have a

specific interest in the protection of those areas and in the full implementation of the Endangered

Species Act and the National Environmental Policy Act. Plaintiffs and their members would

derive more benefits from their use of Washingtons forested and salt water areas if logging

activities were not adversely impacting marbled murrelets and their habitat. The Sierra Club and

the Olympic Forest Coalition and their members plan to continue using and enjoying salt water

and forested areas in Washington where they can view and enjoy marbled murrelets.

11. The above-described interests of plaintiffs and their members have been, are

being, and, unless the relief prayed for herein is granted, will continue to be adversely affected

by defendants disregard of their statutory duties under the ESA and NEPA and by the unlawful

harm imposed on marbled murrelets and their habitat that results. Defendants failure to fully

implement the ESA and NEPA injures the interests of plaintiffs and their members. The relief

requested in this lawsuit can redress these injuries.

12. Defendants in this action are:

A. KEN SALAZAR, the Secretary of the Department of the Interior, who is charged

with implementing the ESA and the NEPA; and



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B. DAN ASHE, the Director of the U.S. Fish and Wildlife Service, who is charged

with implementing the ESA and the NEPA as those laws apply to marbled murrelets.

13. The U.S. Department of the Interior and the U.S. Fish and Wildlife Service are

agencies within the meaning of the Administrative Procedure Act, 5 U.S.C. 701 et seq.

IV. STATUTORY BACKGROUND

A. The Endangered Species Act.

14. Congress enacted the Endangered Species Act, 16 U.S.C. 1531 et seq., to

provide a means whereby the ecosystems upon which endangered species and threatened species

depend may be conserved ... [and] to provide a program for the conservation of such endangered

species and threatened species.... 16 U.S.C. 1531(b). Before a species receives any protection

under the ESA, the Service must list the species as either threatened or endangered. 16

U.S.C. 1533(a) & (c). A threatened species is one that is likely to become an endangered

species within the foreseeable future through all or a significant portion of its range. 16 U.S.C.

1532(20).

15. Section 9 of the ESA makes it unlawful for any person to take an endangered

species of fish or wildlife. 16 U.S.C. 1538(a)(1)(B). Regulations adopted by the Service apply

the ESAs take prohibition to threatened species, including the marbled murrelet. 50 C.F.R.

17.31. The term take is defined broadly as to harass, harm, pursue, hunt, shoot, wound, kill,

trap, capture, or collect, or to attempt to engage in any such conduct. 16 U.S.C. 1532(19).

The Services regulations define harm to include significant habitat modification or

degradation where it actually kills or injures wildlife by significantly impairing essential

behavioral patterns, including breeding, feeding or sheltering. 50 C.F.R. 17.3. All persons,



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including any officer, employee, agent, department, or instrumentality of the Federal

Government, [or] of any State, are subject to the ESAs take prohibition. 16 U.S.C. 1532(13).

16. Section 10 of the ESA creates a limited exemption from the ESAs take

prohibition by authorizing the Service to permit the take of listed species that incidentally results

from otherwise lawful activities. 16 U.S.C. 1539(a)(1)(B). A permit issued pursuant to ESA

section 10(a)(1)(B) is referred to as an incidental take permit (ITP).

17. To obtain an ITP, the ESA requires the applicant to submit a habitat conservation

plan that specifies: the impacts that will likely result from the expected taking; the steps the

applicant will take to minimize and mitigate such impacts; a description of what alternative

actions to such taking the applicant considered; and the reasons why such alternatives are not

being utilized. 16 U.S.C. 1539(a)(2)(A).

18. The ESA requires the Service to provide the public with an opportunity to

comment on an applicants habitat conservation plan before the Service issues an ITP. 16 U.S.C.

1539(a)(2)(B). Before issuing an ITP the Service must find among other things that the

expected taking will be incidental; that the applicant will, to the maximum extent practicable,

minimize and mitigate the impacts of such taking; that the applicant has assured adequate

funding for its HCP; and that the taking will not appreciably reduce the likelihood of the survival

and recovery of the species in the wild. 16 U.S.C. 1539(a)(2)(B).

19. Before issuing an ITP the Service must also initiate and complete consultation

under ESA section 7. ESA section 7 requires federal agencies to evaluate expected impacts to

listed species and designated critical habitat before authorizing, funding, or taking any

discretionary action. 16 U.S.C. 1536(a)(2). For terrestrial species such as marbled murrelets,

the ESA requires federal agencies to consult with the U.S. Fish and Wildlife Service. The



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consultation process is intended to ensure that planned agency actions do not risk jeopardizing

the continued existence of listed species.

B. The National Environmental Policy Act.

20. The National Environmental Policy Act is the nations basic charter for the

protection of the environment. NEPAs purposes are to help public officials make decisions

that are based on [an] understanding of environmental consequences, and to take actions that

protect, restore, and enhance the environment. 40 C.F.R. 1500.1(c). To accomplish those

purposes, NEPA requires all agencies of the federal government to prepare an environmental

impact statement (EIS) for all major federal actions significantly affecting the quality of the

human environment. 42 U.S.C. 4332(C). The Council on Environmental Quality (CEQ),

an agency within the Executive Office of the President, has promulgated regulations

implementing NEPA that are binding on all agencies. 42 U.S.C. 4342; 40 C.F.R. 1500 et

seq. CEQ regulations state that major federal actions include actions approved by permit. 40

CFR 1508.18(b)(4). The U.S. Supreme Court has stated that major actions include the

expansion or revision of ongoing programs.Andrus v. Sierra Club, 442 U.S. 347, 362 n.21

(1979) (citing S.Rep. No. 91-296, p. 20 (1969)).

21. Agencies that prepare an EIS must take a hard look at the impacts of the action

and ensure that environmental information is available to public officials and citizens before

decisions are made and before actions are taken. 40 C.F.R. 1500.1(b).

22. An EIS must describe: (1) the environmental impact of the proposed action; (2)

any adverse environmental effects which cannot be avoided should the proposal be

implemented; (3) alternatives to the proposed action; (4) the relationship between local short

term uses of [the] environment and the maintenance and enhancement of long-term



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productivity; and (5) any irreversible or irretrievable commitment of resources which would be

involved in the proposed action should it be implemented. 42 U.S.C. 4332. An agency

preparing a final environmental impact statement shall assess and consider comments both

individually and collectively, and shall respond to them in the final environmental impact

statement. 40 C.F.R. 1503.4(a).

23. CEQ regulations impose a duty on all federal agencies to prepare a supplement to

an EIS if there are significant new circumstances or information relevant to environmental

concerns and bearing on the proposed action or its impacts. 40 C.F.R. 1502.9(c). The

determination whether to prepare a supplemental EIS is similar to the decision whether to

prepare an EIS in the first instance: If there remains major Federal actio[n] to occur, and if the

new information is sufficient to show that the remaining action will affec[t] the quality of the

human environment in a significant manner or to a significant extent not already considered, a

supplemental EIS must be prepared. Marsh v. Oregon Natural Resources Council, 490 U.S.

360, 374 (1989).

V. STATEMENT OF FACTS

A. The Washington Department of Natural Resources Trust Lands HCP.

24. DNR manages more than 1.6 million acres of forestland in western Washington

(DNR Trust Lands) under the Washington Department of Natural Resources Trust Lands HCP.

The HCP applies to DNR Trust Lands within six of DNRs land management planning areas: the

North Puget, South Puget, Straits, Columbia, South Coast, and Olympic Experimental State

Forest planning units. Some of the DNR Trust Lands subject to the HCP contain habitat

conditions suitable for marbled murrelets. Logging suitable marbled murrelet habitat can harm

marbled murrelets.



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25. In 1996 DNR submitted the HCP to the Service as an application for an incidental

take permit. Before approving the HCP the Service provided the public with an opportunity to

comment on the HCP; the Service accepted public comment on a draft environmental impact

statement; and the Service published a final environmental impact statement pursuant to the

National Environmental Policy Act.

26. Before approving the HCP the Service found that the expected taking of marbled

murrelets will be incidental; that the applicant will, to the maximum extent practicable, minimize

and mitigate the impacts of such taking; that the applicant has assured adequate funding for its

HCP; and that the taking will not appreciably reduce the likelihood of the survival and recovery

of marbled murrelets in the wild.

27. Before approving the HCP the Service completed formal consultation and issued

a biological opinion pursuant to section 7 of the ESA. The incidental take statement included

with the Services 1997 biological opinion states:

All conservation measures described in the proposed HCP, together with the

terms and conditions described in any associated Implementing Agreement andany incidental take permit or permits issued with respect to the proposed HCP, are

hereby incorporated by reference as reasonable and prudent measures and terms

and conditions in this Incidental Take Statement. Such terms and conditions arenon-discretionary and must be undertaken for the exemptions under section

10(a)(1)(B) and section 7(o)(2) of the Act to apply.

This condition of the incidental take statement required the Service to ensure implementation of

the HCP in order to avoid violations of the ESA.

28. On January 30, 1997, the Service issued DNR incidental take permit number

812521. The Service complied with the incidental take statement in the biological opinion in

part by making the HCP a condition of DNRs incidental take permit number 812521. In Box 11

of incidental take permit number 812521, the Service checked a box indicating that additional



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conditions and authorizations on reverse also apply. On incidental take permit number 812521

the Service listed nine separate conditions under the heading U.S. Fish and Wildlife Service,

Portland, Oregon, Additional Permit Conditions for PRT-812521.

29. Paragraph E of the Additional Permit Conditions for PRT-812521 states:

The authorization granted by this permit is subject to full and complete

compliance with, and implementation of, the Habitat Conservation Plan (HCP),

and Implementation Agreement (IA), executed by the Permittee, the U.S. Fish andWildlife Service and the National Marine Fisheries Service. This permit, and the

HCP and IA, are binding upon the Permittee, and any authorized officer,

employee, contractor, or agent conducting permitted activities.

Paragraph E of the Additional Permit Conditions for PRT-812521 requires full compliance with

the HCP.

30. Paragraph G of the Additional Permit Conditions for PRT-812521 states in part:

Permittee, and its authorized officers, employees, contractors, and agents are

authorized to incidentally take marbled murrelets (Brachyramphus

marmoratus) in the course of otherwise lawful activities in accordance with the

terms and conditions of the HCP, IA, the permit, and the Incidental TakeStatement of the Biological Opinion (attached hereto).

Paragraph G of the Additional Permit Conditions for PRT-812521 limits the take allowed by

DNRs incidental take permit number 812521 to the impacts and take levels discussed in the

Services 1997 biological opinion. The Services 1997 biological opinion uses habitat as a proxy

for evaluating impacts to marbled murrelets and for setting limits on DNRs incidental take of

marbled murrelets. The Services 1997 biological opinion limits its evaluation of impacts to

marbled murrelets in Southwest Washington by considering only the impacts caused by logging

4,364 acres of marbled murrelet habitat in that region.

31. DNR, the U.S. Fish and Wildlife Service, and the National Oceanic and

Atmospheric Administration entered into an implementation agreement for the HCP (IA).

Section 25.1.a. of the IA states: The ITP can be amended or modified in accordance with [the



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Services] regulations as provided in this Agreement. The IA allows certain minor

amendments to the HCP, including land acquisition and disposition, corrections of typographic

and grammatical errors, and corrections to maps, to be made without notification. By contrast,

Section 25.3.c. of the IA states:

HCP amendments that will result in an increased level of incidental take will

require amendment to the ITP under subsection 25.1.a. of this Agreement. HCP

amendments that do not increase the level of incidental take will not requireamendment to the ITP under subsection 25.1.a. of this Agreement so long as

appropriate mitigation is provided.

32. If DNR desires to have any condition of the ITP modified, 50 C.F.R. 13.23

requires DNR to submit a full written justification and supporting information in conformity with

50 C.F.R. Part 17. 50 C.F.R. 17.32 requires a person seeking an incidental take permit to

submit a detailed conservation plan; requires the Service to provide public notice of the proposed

conservation plan; and requires the Service to make certain findings before approving the

proposed conservation plan and incidental take permit. 50 C.F.R. 13.23 makes the provisions

of 50 C.F.R. 17.32 applicable to one seeking amendment of an ITP. The Services HCP

Handbook states on page 3-32 that A permit amendment consists of the same process as the

original permit application, requiring an amendment to the HCP addressing the new

circumstance(s), a Federal Registernotice, NEPA compliance, and an intra-Service section 7

consultation.

B. The Interim Marbled Murrelet Conservation Strategy in the HCP.

33. The HCP includes specific conservation measures for marbled murrelets that

DNR must implement over the term of the incidental take permit. DNRs initial attempts to

create a long-term marbled murrelet conservation strategy were unsuccessful because of lack of

knowledge about the birds habitat needs. The HCP therefore includes a five-step interim



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marbled murrelet conservation strategy (hereinafter interim strategy). The interim strategy is

described on pages 39-42 of Section IV of the HCP. The interim strategy is supposed to

conclude with DNRs adoption of long-term marbled murrelet conservation strategies that

contribute to the recovery of marbled murrelets. On page 39 of Section IV, the HCP states that

the interim strategy was designed to protect the marbled murrelet on DNR-managed trust lands

in the area covered by the HCP while participating in collection of the information needed to

develop a long-term conservation strategy.

34. Step 1 of the interim strategy required DNR to identify and defer harvest of

suitable marbled murrelet habitat while conducting Step 2 of the interim strategy.

35. Step 2 of the interim strategy required DNR to conduct two-year habitat

relationship studies in each land management area subject to the HCP to determine the relative

importance of various habitat types based on marbled murrelet occupancy. The Service refers to

locations that support marbled murrelets as occupied sites. Throughout implementation of the

interim strategy the HCP prohibits DNR from logging or authorizing logging of any known

occupied site regardless of the sites habitat classification.

36. Step 3 of the interim strategy required DNR to determine which lands subject to

the HCP were expected to support 5% of the occupied sites on DNR-managed lands within each

planning unit. DNR refers to the habitat expected to support 5% of the occupied sites on DNR-

managed lands as marginal habitat. Step 3 of the interim strategy allows DNR to harvest

timber on lands with marginal habitat.

37. Step 4 of the interim strategy required DNR to determine which lands subject to

the HCP were expected to support 95% of the occupied sites on DNR-managed lands within

each planning unit. The Service refers to the habitat expected to support 95% of the occupied



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sites on DNR-managed lands in each land management area as higher quality habitat or

reclassified habitat. Step 4 of the HCP required DNR to survey higher quality habitat to

identify locations supporting marbled murrelets.

38. Step 4 of the interim strategy requires DNR to manage higher quality habitat in

Southwest Washington differently than it manages higher quality habitat in other areas of

western Washington. Southwest Washington consists of that portion of the Columbia Planning

Unit west of Interstate 5 and that portion of the South Coast Planning Unit that is located south

of Highway 8. As described in the original HCP, Step 4 of the interim strategy prohibited DNR

from logging higher quality habitat in Southwest Washington until DNR adopted the long-term

marbled murrelet conservation strategies or until at least 12 months passed since DNR and the

Service commenced negotiations on the long-term marbled murrelet conservation strategies. In

contrast, outside of Southwest Washington Step 4 of the interim strategy allows DNR to log up

to 50% of the higher quality habitat in each watershed administrative unit.

39. The interim strategy for Southwest Washington requires DNR to protect all higher

quality habitat in Southwest Washington because there is less federal landand hence less

marbled murrelet habitatin Southwest Washington than in other parts of Washington. The

Northwest Forest Plan is a group of federal forest management plans that include provisions

designed to protect marbled murrelets and marbled murrelet habitat on federal lands throughout

the range of the northern spotted owl. There are no, or very few, federal lands in Southwest

Washington. Preserving marbled murrelets in Southwest Washington is essential to maintaining

marbled murrelets in Washington and to maintaining connectivity between marbled murrelet

populations in Oregon and on the Olympic Peninsula. Given the lack of federal lands in

Southwest Washington, the interim strategy for Southwest Washington requires DNR to protect



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all higher quality habitat in Southwest Washington because a higher percentage of the higher

quality habitat in that region may be needed to ensure that the long-term marbled murrelet

conservation strategies meet the requirements of the HCP.

40. Step 5 of the interim strategy requires DNR to use the information gathered in

Steps 1-4 of the interim strategy to develop a long-term marbled murrelet conservation strategy

for each planning unit. Step 5 of the interim strategy requires DNR to conduct a comprehensive

review of all of the long-term conservation strategies before submitting them to the Service for

approval. The HCP requires DNR to adopt long-term marbled murrelet conservation strategies

that will contribute to the recovery of marbled murrelets.

41. The interim strategy requires DNR to complete the interim strategy in sequence

and with no time gaps between Steps 1-5.

C. DNRs implementation of its interim marbled murrelet conservation strategy.

42. In Southwest Washington DNR substantially complied with Steps 1, 2 and 3 of

the interim strategy. As to Step 4 of the interim strategy, DNR determined that there are

approximately 20,000 acres of higher quality marbled murrelet habitat in Southwest Washington

and DNR deferred timber harvest in that higher quality habitat. By the end of 2002 DNR had

surveyed all or most of the higher quality habitat in Southwest Washington using marbled

murrelet survey protocols developed by the Pacific Seabird Group. As to step 5, the interim

strategy required DNR to adopt a long-term marbled murrelet conservation strategy shortly after

DNR completed the required marbled murrelet surveysby around 2004.

43. To implement Step 5 of the interim strategy for all planning units, in or around

2004 DNR convened a team of scientists to develop the long-term conservation strategies

required by the HCP (hereinafter the Science Team). The Science Team produced a 2008



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report entitledRecommendations and Supporting Analysis of Conservation Opportunities for the

Marbled Murrelet Long-Term Conservation Strategy (hereinafter the 2008 Science Report).

For Southwest Washington, the 2008 Science Report recommends that DNR manage some of its

forests to develop large blocks of contiguous forest containing marbled murrelet habitat. The

2008 Science Report refers to the recommended blocks of contiguous forest as Marbled

Murrelet Management Areas (MMMAs). Among other things, the Science Report

recommends that DNR establish nine blocks of MMMAs in Southwest Washington; that DNR

defer logging of all marbled murrelet habitat in any MMMAs it ultimately establishes; and that

once the MMMAs are established DNR conduct only forest thinning in the MMMAs to

accelerate development of marbled murrelet habitat.

44. DNR has not yet developed or adopted the long-term marbled murrelet

conservation strategies required by the HCP.

D. The 2012 Amendment to the HCP and DNRs Incidental Take Permit.

45. By letter dated June 7, 2011, the U.S and Fish and Wildlife Service informed

DNR that DNRs delay in adopting a long-term conservation strategy potentially constituted a

violation of the HCP. The Service requested that DNR adopt a minor amendment to the HCP

that would mitigate the potential violations by protecting marbled murrelet habitat within areas

proposed as MMMAs in Southwest Washington so those areas could later be included in a long-

term conservation strategy for that region. The Service also requested that the amendment

mitigate the delay in adopting the long-term conservation strategies by instituting greater

protections for marbled murrelet habitat in the Olympic Experimental State Forest. And the

Service requested that the amendment adopt a deadline of 2013 for DNR to complete the long-

term conservation strategies required by the HCP.



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46. On February 24, 2012, DNR announced its intent to adopt a minor amendment

to the interim strategy to allow DNR to log approximately 12,000 acres of higher quality marbled

murrelet habitat in Southwest Washington. DNR needed to amend the interim strategy because

the HCP prohibited DNR from logging higher quality marbled murrelet habitat in Southwest

Washington. DNRs proposed amendment did not include the mitigation requested by the

Service or a commitment to complete the long-term conservation strategies by 2013.

47. Before finalizing its proposed amendment DNR provided a public process so that

interested citizens could consider and understand DNRs proposal. DNR published notice of its

intent to amend the interim strategy and reviewed the proposed amendment pursuant to

Washingtons State Environmental Policy Act, RCW 43.21C. As required by Washington State

law, DNR also sought and accepted public comments about expected impacts from the proposed

amendment.

48. The Washington Department of Fish and Wildlife, the Seattle Audubon Society,

the Olympic Forest Coalition, and the Columbia River Alliance for Nurturing the Environment

all submitted comments that expressed concern about impacts to marbled murrelets that would

result from logging 12,000 acres of higher quality marbled murrelet habitat in Southwest

Washington before DNR adopted its long-term marbled murrelet conservation strategy. Some

commenters commented that the proposed amendment could not be processed as a minor

amendment because it would increase the level of incidental take of marbled murrelets

authorized by the HCP. Some commenters expressed concern that DNR relied on flawed

information gathered during the interim strategy, including flawed habitat relationship studies

and flawed murrelet surveys, when it identified the approximately 12,000 acres it proposed to

open to timber harvest via the HCP amendment.



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49. In comments on DNRs proposed amendment, the Washington Department of

Fish and Wildlife (WDFW) specifically expressed concerns about the accuracy of DNRs

marbled murrelet survey results. DNRs marbled murrelet surveys failed to detect some

occupied sites in southwest Washington. Appendix F of the 2008 Science Report estimated that

DNRs marbled murrelet surveys caused DNR to misclassify as unoccupied over 15% of the

occupied sites in Southwest Washington. The 15% error rate accounts for only one of several

sources of likely error in DNRs surveys. Comments by WDFW on past timber sales affecting

marbled murrelets expressed concern that an overly restrictive definition of occupancy and

mistakes in setting up survey stations also contributed to survey error. One study, Anthony et al.

2003, documented the Washington Department of Fish and Wildlifes independent marbled

murrelet survey results in the Olympic Experimental State Forest, which is managed by DNR but

not located in Southwest Washington. On pages 44-45, Anthony et al. 2003 concluded:

Of the 36 DNR survey areas (33 presence and 3 no detection) that WDFWexclusively surveyed, 28 (78%) were found to be occupied. Had these areas not

been re-surveyed and found to be occupied, they would have been cleared for

harvesting, and likely would have been harvested under the interim HCP.

50. Also in comments on DNRs proposed amendment, the Seattle Audubon Society,

the Olympic Forest Coalition, and the Columbia River Alliance for Nurturing the Environment

expressed concerns that the proposed amendment would prevent DNR from developing a long-

term conservation strategy for Southwest Washington that meets the HCP requirement to

contribute to recovery of marbled murrelets. Specifically, those groups expressed concern that

DNR would not be able adopt an effective long-term strategy without all or part of the 12,000

acres subject to the proposed amendment.

51. During the public comment period on DNRs proposed HCP amendment, the

Service and DNR discussed DNRs response to the Services June 7, 2011 letter. By letter dated



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April 17, 2012, the Service stated that DNRs logging of the higher quality habitat outside

proposed MMMAs was better than logging forest stands within proposed MMMAs.

52. At the conclusion of DNRs public process, and by letter dated May 1, 2012,

DNR formally requested an amendment to the HCP to allow DNR to log approximately 12,000

acres of higher quality habitat in Southwest Washington. In its May 1, 2012 letter to the Service

DNR asserted that the proposed amendment would not require an amendment to DNRs

incidental take permit because the amendment would not increase the level of take authorized by

that permit and because the mitigation DNR would provide is appropriate.

53. DNR has not surveyed the majority of the higher quality habitat on DNR Trust

Lands in Southwest Washington since 2003, when the Pacific Seabird Group changed the

marbled murrelet survey protocol to increase the likelihood that surveys would identify forest

stands used by marbled murrelets. Logging higher quality habitat in Southwest Washington

now, without first re-surveying lands subject to the HCP amendment, risks logging occupied

marbled murrelet sites.

54. The HCP amendment that DNR requested in its May 1, 2012 letter to the Service

did not include the mitigation requested by the Service in its June 7, 2011 letter to DNR. The

amendment that DNR requested did not prohibit logging in all areas proposed as MMMAs in

Southwest Washington. The amendment that DNR requested did not require DNR to establish

MMMAs in Southwest Washington as a condition of DNR being allowed to log higher quality

marbled murrelet habitat in that region. The amendment that DNR requested did not include any

protections for murrelet habitat in the Olympic Experimental State Forest. The amendment that

DNR requested did not require DNR to complete the long-term marbled murrelet conservation

strategies by 2013. And the amendment that DNR requested did not require DNR to re-survey



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higher quality marbled murrelet habitat in Southwest Washington before logging it.

55. The amendment that DNR proposed in its May 1, 2012 letter to the Service

requires an amendment to DNRs incidental take permit number 812521 because the amendment

authorizes logging of marbled murrelet habitat in excess of the levels or type of incidental take

authorized by DNRs incidental take permit and the Services 1997 biological opinion. The

amendment that DNR proposed in its May 1, 2012 letter to the Service requires an amendment to

DNRs incidental take permit number 812521 because the amendment does not provide

appropriate mitigation. The mitigation that DNR provides for the amendment is inappropriate

because it is temporary, does not protect marbled murrelets occupying the higher quality habitat

in Southwest Washington that is subject to the amendment, and does not fully compensate for the

destruction of 12,000 acres of higher quality habitat in Southwest Washington. The amendment

that DNR proposed in its May 1, 2012 letter to the Service requires an amendment to DNRs

incidental take permit number 812521 because it undermines the conservation goals of the HCP

and may prevent DNR from adopting long-term conservation strategies that meet the

requirements of the HCP.

56. By letter dated May 29, 2012, the U.S. Fish and Wildlife Service concurred with

DNRs request for an amendment to the HCP and stated that the minor amendment is effective

today, May 29, 2012. The Services May 29, 2012 letter to DNR amends the HCP, lifts the

interim strategys strict prohibition on logging higher quality marbled murrelet habitat in

southwest Washington, and allows DNR to log approximately 12,000 acres of higher quality

habitat in that region. The Services May 29, 2012 letter to DNR demonstrates that the Service

determined that DNRs proposed amendment did not require an amendment to DNRs incidental

take permit number 812521.



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57. By concurring with DNR that the proposed amendment is a minor amendment,

the Services May 29, 2012 letter to DNR deprived the Sierra Club, the Olympic Forest

Coalition, and their members of important public processes under the APA, the ESA and the

NEPA. Specifically, the Service approved DNRs proposed amendment (hereinafter 2012

Amendment) without receiving a detailed conservation plan from DNR that meets applicable

ESA requirements; without providing the public with an opportunity to comment on the

proposed amendment; without conducting environmental review of the proposed amendment

under the NEPA; without evaluating the effects of the proposed amendment under ESA section

7; and without finding that the 2012 Amendment meets the criteria set forth in Section

10(a)(2)(B) of the ESA, 16 U.S.C. 1539(a)(2)(B).

58. The Services May 29, 2012 letter to DNR concluded the Services decision-

making process and allows DNR to log approximately 12,000 acres of land that was previously

off-limits to timber harvesting operations. The Services May 29, 2012 letter to DNR is final

agency action that is subject to judicial review.

CLAIMS FOR RELIEF

FIRST CLAIM FOR RELIEF

(Against all Defendants)

Violation of the Administrative Procedure Act and the Endangered Species Act:Approving the 2012 Amendment Without First Complying with the ESA.

59. Plaintiffs hereby re-allege and incorporate by reference all of the preceding

paragraphs.

60. The 2012 Amendment requires an amendment to DNRs incidental take permit.

61. The Service violated the APA and the ESA by approving the 2012 Amendment

without first receiving a detailed conservation plan from DNR that meets applicable



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requirements; without first providing the public with an opportunity to comment on the proposed

amendment; without first evaluating the effects of the proposed amendment under ESA section

7; and without first finding that the 2012 Amendment meets the criteria set forth in Section

10(a)(2)(B) of the ESA, 16 U.S.C. 1539(a)(2)(B).

SECOND CLAIM FOR RELIEF


Violation of the Administrative Procedure Act and the Endangered Species Act:

Arbitrary and Capricious Decision-Making


paragraphs.

63. The Services determination that the 2012 Amendment does not require an

amendment to DNRs 1997 incidental take permit is arbitrary, capricious, an abuse of discretion,

or otherwise not in accordance with law; in excess of statutory jurisdiction, authority, or

limitations, or short of statutory right; without observance of procedure required by law; and

unsupported by substantial evidence.

THIRD CLAIM FOR RELIEF


Violation of the Administrative Procedure Act and the National Environmental Policy Act:

Failure to Complete a Supplemental EIS.


paragraphs.

65. The 2012 Amendment is a major federal action significantly affecting the quality

of the human environment.



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66. The Service failed to complete a supplemental environmental impact statement

that evaluates the environmental impacts of the 2012 Amendment.

67. Defendants violated the National Environmental Policy Act and applicable

implementing regulations by approving the 2012 Amendment without first completing a

supplemental EIS that assesses the environmental impacts that will result from the 2012

Amendment.

PRAYER FOR RELIEF

Wherefore, Plaintiffs pray that this Court:

A. Declare that the Defendants violated the Administrative Procedure Act and

section 10(a)(1)(A) of the Endangered Species Act, 16 U.S.C. 1539(a)(1)(A), by approving the

2012 Amendment without first receiving from DNR an application that meets the requirements

of the ESA;

B. Declare that the Defendants violated the Administrative Procedure Act and

section 10(a)(1)(B) of the Endangered Species Act, 16 U.S.C. 1539(a)(1)(B), by approving the

2012 Amendment without first publishing notice of its intent to approve the Amendment and

accepting public comments on that proposal;

C. Declare that the Defendants violated the Administrative Procedure Act and

section 10(a)(1)(B) of the Endangered Species Act, 16 U.S.C. 1539(a)(1)(B), by approving the

2012 Amendment without first making the findings required by 16 U.S.C. 1539(a)(1)(B)(i)-(v);

D. Declare that any findings the Defendants did make under 16 U.S.C.

1539(a)(1)(B)(i)-(v) with respect to the 2012 Amendment are arbitrary, capricious, and otherwise

in violation of the Administrative Procedure Act and the Endangered Species Act;



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E. Declare that the Defendants violated the National Environmental Policy Act by

failing to complete a Supplemental EIS before approving the 2012 Amendment;

F. Declare that the Services May 29, 2012 approval of the 2012 Amendment

violates the Administrative Procedure Act, the Endangered Species Act, and/or the National

Environmental Policy Act and so is invalid and without the force or effect of law;

G. Issue an injunction requiring the Service to retract its May 29, 2012 approval of

the 2012 Amendment;

H. Award Plaintiffs their costs and attorneys fees in this action pursuant to the ESA,

16 U.S.C. 1540(g)(4), and the Equal Access to Justice Act, 28 U.S.C. 2412; and

I. Grant Plaintiffs such other relief as this Court finds just and appropriate.

Respectfully submitted this 27th day of July, 2012.

By: s/ Wyatt Golding

WYATT GOLDING (WSBA #44412)

[email protected] KAMPMEIER (WSBA #31560)

[email protected]

WASHINGTON FOREST LAW CENTER

615 Second Avenue, Suite 360

Seattle, Washington 98104-2245

(206) 223-4088(206) 223-4280 [fax]

Attorneys for Plaintiffs


Documents

Sierra Club v. Salazar Lawsuit