Montana federal court distinguishes 9th Circuit case, grants deference, and upholds FWS grizzly bear biological opinion
Swan View Coalition v. Barbouletos, CV 05-64-M-DWM (D.Mont. March 31, 2008)
The U.S. Forest Service adopted the Flathead National Forest Plan on January 22, 1986. The U.S. Fish & Wildlife Service’s Biological Opinion for the Forest Plan, issued in 1985 and amended in 1989, concluded that implementation of the Plan was not likely to result in jeopardy to the continued existence of threatened or endangered species, including the grizzly bear, listed as threatened under the ESA in 1975. 40 Fed. Reg. 31736. FWS issued a Grizzly Bear Recovery Plan in 1982 and revised it in 1993.
In 1995, the Forest Service adopted Amendment 19 to its forest plan, with new Forest-wide standards and objectives for grizzly bear habitat management.
Amendment 19's standards require, among other limitations, that in each bear management subunit, “there will be no net increase in total motorized access
density greater than 2 miles per square mile." However, due to funding limitations, in 2004, the Forest Service’s request for re-initiation of formal consultation on a revised implementation schedule for Amendment 19's access management objectives. Eventually, FWS produced three biological opinions at issue in this case: the 2005 Amendment 19 Revised Biological Opinion, as well as a 2004 Robert-Wedge Biological Opinion and the 2004 West Side Biological Opinion.
Photo from the FWS Mountain-Prarie Region Grizzly Photo Gallery
As requested by the Plaintiffs, the court struck from the record a document completed only two days prior to the certification of the administrative record. However, on all other matters, the Court ruled in favor of the Federal Defendants. The Court rejected the arguments that the biological opinions failed to use a numerical estimate for take, or otherwise improperly used road density as an ecological surrogate for measuring take of grizzly bears. In addition, the Court rejected the argument that the amount of incidental take, as measured through a surrogate like road density, could not be "coextensive" with the entire project. Significantly, in rejecting Plaintiff's arguments, the District Court specifically distinguished otherwise binding Ninth Circuit caselaw, namely Oregon
Natural Resources Council v. Allen, 476 F.3d 1031, 1037-1038 (9th Cir. 2007).
The District Court opinion also addressed two notions often seen in environmental litigation: (1) squarely rejecting the suggestion that the perfect is the enemy of the good, and (2) firmly deferring to the expert federal agency:
"The improvements to grizzly bear habitat that will result from the scheduled implementation of the challenged projects are not illusory—the projects will create more habitat for grizzlies in the affected subunits than existed prior to implementation. The Plaintiffs’ advocate an aspirational conception of the
existing situation that would lead to a perverse outcome in which the Service must reject a project that improves conditions because it does not improve them enough. Such an approach undermines the utility of the evaluation of the effects of an action and is not required by the law..."
"More problematic for the Plaintiffs is the fact that their argument presupposes that the projects will result in grizzly bear mortalities, an assumption that is at odds with the Fish & Wildlife Service’s conclusion that the projects will likely result in displacement but not mortality. The Plaintiffs cite Rock Creek Alliance v. United States Forest Service, 390 F. Supp. 2d 993, 1008 (D.Mont. 2005), for the proposition that even one projected grizzly bear death in a population of fewer than 40 bears requires an adequate explanation. Here there are no projected deaths and the bear population numbers in the hundreds. Moreover, the projects here will improve conditions for the bears resulting in more usable habitat and reducing mortality risks. The Plaintiffs’ refusal to move beyond their environmental baseline position and acknowledge the conditions for the bears as they exist continues to undermine their arguments. The Fish & Wildlife Service has adequately explained its determination that the projects will not result in mortality and will improve the habitat situation for grizzly bears. Where there is no expectation of mortality, the Service is under no obligation to explain why increases in mortality are acceptable."