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KEVIN S. PETTITT helped found this blawg. A D.C.-based IT consultant specializing in Lotus Notes & Domino, he also maintains Lotus Guru blog.

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Court refuses to stop Ice Storm Recovery project in Daniel Boone National Forest, finds no immediate threat to Indiana bats.

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Heartwood v. Peterson, Case 5:07-cv-00114-KSF, Document 40 (E.D. Ky. May 21, 2008).

In a motion for preliminary injunction, Heartwood, a public interest group, sought to stop activities by the U.S. Forest Service in the Daniel Boone National Forest, which includes critical habitat in Kentucky for the endangered Indiana bat.  Although bats have been found in DBNF, in December 2005, FWS determined in a biological opinion that implementation of the Ice Storm Recovery Project – designed to functionally restore a 25,000 acre area affected by a 2003 ice storm to its previous condition – was not likely to jeopardize the continued existence of the Indiana bat.   Heartwood, however, claimed that the emergence of a fungal ailment known as White Nose Syndrome in some tree-cavity-dwelling Indiana bats (but nowhere within 700 miles of DBNF) required a reinitiation of the Endangered Species Act’s Section 7 consultation process on the DBNF Forest Plan and the 2003 Ice Storm Recovery Project. The Court wholly rejected the substance of Plaintiffs’ challenge to the government's actions, finding that the Forest Service did not need to reinitiate ESA consultation and met its duty to conserve the species, whereas Heartland could not show any immediate injury.  For excerpts of U.S. Senior Judge Karl Forester’s opinion, read more below.

IndianaBatcave.jpg
Photo by Merlin Tuttle of Indiana bats in Kentucky's Bat Cave State Nature Preserve

CORE HOLDINGS:

The Forest Service did not need to re-initiate formal consultation.  Although Heartwood speculates that WNS may impact Indiana bats in the DBNF, the record demonstrates that the Forest Service has fully considered the impacts of WNS as they are known at this time and has made a reasonable decision, based on expert advice, not to reinitiate consultation at this time. Accordingly, the Court finds that Heartwood is not likely to succeed on the merits of its ESA claim based on alleged duty to reinitate formal consultation due to WNS.

The Forest Service met its duty to conserve the species.  Based on the threat posed to the survival of the Indiana bat arising from WNS, Heartwood contends that USFS must meet the ESA’s “duty to conserve” mandates. The USFS in the present case, however, fully complied with the procedural framework outlined by the ESA by entering into formal consultation with FWS, by complying with the terms and conditions of the ITS, and by evaluating and monitoring the threat posed by WNS. The USFS has thus satisfied its duty to conserve the Indiana bat under the ESA.

Heartland could not demonstrate irreparable harm.  Harm is irreparable only if it is “certain and immediate;” it cannot be based on injuries that are “speculative or theoretical.” Id. Heartwood cannot meet this burden. The 2005 biological opinion from FWS concluded that the Ice Storm Project would not jeopardize the Indiana bat. The new evidence relied upon by Heartwood - the outbreak of WNS in the Northeast - does not establish that Indiana bats in the DBNF will suffer certain and immediate harm. In fact, the record reveals that Kentucky has not been affected by WNS, and in fact, the Indiana bat population in Kentucky is on the rise.

The public interest weighed against an injunction due to the benefits of the Ice Storm Recovery Project, the monetary harm to the government if the timber harvest was enjoined, and the existing ESA compliance efforts.