Allen

MEMORANDUM **

After briefing in this case was completed, but before oral argument, another panel of this Court issued an opinion in Gifford Pinchot Task Force v. United States Fish & Wildlife Serv., 378 F.3d 1059 (9th Cir.2004). In Gifford Pinchot, as here, the Court was presented with challenges to biological opinions covering timber sales within the range of the northern spotted owl (spotted owl) and authorizing the incidental take of the spotted owl. Id. at 1062-63. Of relevance to the issues in this case, the Court held that: (1) it was permissible for the Fish and Wildlife Service (Service) to use a detailed habitat model as a proxy for estimating owl population in its jeopardy analysis, id. at 1066-67; (2) the Service could “permissibly rely, in part, on the projections and assumptions of the [Northwest Forest Plan (NFP) ] in its jeopardy analysis,” id. at 1068; (3) the Service’s regulation defining “destruction or adverse modification” was invalid, id. at 1069-70; (4) the Service had “not shown that its erroneous regulatory definition of ‘adverse modification’ was harmless,” id. at 1075; (5) the record lacked evidence that the use of a “landscape” scale in three…