July 21, 2003

By David Kravets, AP Legal Affairs Writer

CTR. FOR BIOLOGICAL DIVERSITY v. BADGLEY, No. 01-35829 (9th Cir. July 21, 2003)

The U.S. Fish & Wildlife Service's determination that a species was not endangered was amply supported by evidence in the record. To read the full text of this opinion, go to:

[PDF File]

http://caselaw.lp.findlaw.com/data2/circs/9th/0135829p.pdf

San Francisco, California (AP) - Thwarting environmentalists, a federal appeals court here Monday upheld the U.S. Fish and Wildlife Service's view that the Northern Goshawk don't need federal protection throughout the West.

The 3-0 decision by the 9th U.S. Circuit Court of Appeals came after 13 years of extensive litigation, in which environmentalists wanted the government to list the large raptor, usually found in the western United States, as endangered or threatened.

A contrary ruling could have impacted logging throughout the West. The American Forest & Paper Association filed briefs in the case, urging the court to side with the Fish and Wildlife Service's decision in 1998 not to grant goshawk protection under the Endangered Species Act.

"Clearly, that was a concern of ours," said Michael Klein, a spokesman for the Forest & Paper Association, which represents 150 wood, pulp and paper companies, along with forest landowners. "But, where we were coming from, was this was essentially a frivolous lawsuit brought by activists who didn't know what they were talking about."

The decision upholds U.S. District Judge Helen Frye of Oregon, who in 2001 ruled that Fish and Wildlife Service officials did not "arbitrarily and capriciously" reject a petition by several environmental groups to have the goshawk listed.

Appeals Judge Donald P. Lay wrote the raptor has indeed declined since "European settlement of the western states." But Lay concluded the government undertook sufficient studies to determine "that the goshawk population is relatively stable at the broadest scale."

The Northern Goshawk is a bird of prey. It sports a black crown and cheeks and has a broad, white stripe over the eye. A male goshawk's wingspan typically reaches 39 inches. Female wingspans measure to 45 inches.

The U.S. Forest Service considers goshawks a sensitive species, a cautionary and preemptive threshold before a species reaches the threatened or endangered list.

Matt Kenna, an attorney for the Center for Biological Diversity, which sought the listing, said a ruling favoring goshawk "would have meant a reduction of logging."

"We think that was one of the reasons for the decision," he said. The center was considering its legal options, he said.

Blain Rethmeier, a Fish and Wildlife Service spokesman, said the government was "pleased with the decision."

In 1998, seven years after the lawsuit was filed, the Clinton administration concluded that data did not indicate the goshawk was in danger of extinction or likely to become so in the foreseeable future.

Generally, goshawk live in mature and old growth forests in all western states. Environmentalists asserted that it numbers have plummeted.

They say it has vanished from Southern California and the coastal mountains of Central California and has been virtually eradicated from the coast mountain ranges of Northern California, Oregon and Washington.

The center said the raptor has declined in Montana, Idaho, Arizona and New Mexico. Its viability is threatened in Nevada, Utah and Wyoming.

The case is Center for Biological Diversity v. Badgley, 01-35829.

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Editors: David Kravets has been covering state and federal courts for a decade.

http://www.bakersfield.com/state_wire/story/3499030p-3530326c.html