Kentucky federal court rejects need for Forest Service to reinitiate consultation on Indiana Bats, notes absence of White Nose Syndrome
Heartwood, Inc. v. Agpaoa et. al., Civ. No. 07-114-KSF, 2009 U.S. Dist. LEXIS 36667 (E.D. Kent. April 27, 2009)
BACKGROUND: The denial of a preliminary injunction in this case was previously discussed in ESA blawg (May 2008). Pursuant to the Endangered Species Act, the issue was whether the U.S. Fish & Wildlife Service needed to reinitiate consultation on a proposed U.S. Forest Service Project, the The Ice Storm Recovery Project. The project involves: (1) cutting of severely damaged and downed trees on 12, 859 acres, of which one-third, or 4,845 acres, would involve removal of the cut trees in commercial timber harvest; (2) control of non-native invasive plants on 1,000 acres by digging up and removing them and by selectively applying herbicides; and (3) restoration of 35 woodland ponds that had served as bat habitat before the storm. According to the Forest Service, the project will facilitate regrowth of trees that were not damaged in the storm as well as growth of new trees, and is an important measure to protect damaged forest stands from gypsy moth defoliation. FWS issued a biological opinion in December 2005 and it determined that implementation of the Ice Storm Recovery Project was not likely to jeopardize the continued existence of the Indiana bat. Specifically, FWS concluded that the project would be conducted in a manner such that "suitable roosting habitat is retained within the salvage/sanitation project areas and is generally not considered to be a limiting factor for the Indiana Bat on the DBNF." FWS further noted that "the Morehead Ranger District has no known occurrence of taking an Indiana bat during tree felling or associated operations." Heartwood, however, argued that an outbreak of White Nose Syndrome (WNS) among Indiana Bat populations necessitated a new biological opinion.
OPINION RE: ESA: In this case, Forest Service has determined that the new information - an outbreak of WNS in the Northeast and other states - does not trigger reinitiation of consultation with FWS. The administrative record reveals that the Forest Service, FWS, and other agencies are currently monitoring the impact of WNS on bat species, including the Indiana bat. Nothing in the record before the Forest Service, however, reveals any impact associated with WNS within the Ice Storm Recovery Project. In fact, the USFS reports a range wide increase of 10.0% in Indiana bat populations from 2005 to 2007. Survey data from the Kentucky Division of Fish and Wildlife revealed no signs of WNS in 13,600 bats. Moreover, the Forest Service's latest field survey in and around the project area found no Indiana bats... Thus, while WNS continues to affect other national forests, there is no new information which shows any impacts on the Indiana bat ... that are greater than previously considered by the Forest Service. As the Ninth Circuit has stated, "we do not hold that every modification of or uncertainty in a complex and lengthy project requires the agency to stop and reinitiate consultation." Sierra Club v. Marsh, 816 F.2d 1376, 1388 (9th Cir. 1987). Rather, the Ninth Circuit concluded that reinitiation was required in that case only (1) because the expert agency, FWS, had requested reinitiation, and (2) because a land transfer upon which the biological opinion had relied had fallen apart... In addition, there is nothing in the record showing that the FWS has requested reinitiation or otherwise disagrees with the Forest Service's determination that the new information does not trigger reinitiation. Given its independent duty to request reinitiation when warranted, the FWS presumably will speak up if conditions requiring reinitiation arise. Accordingly, the Court concludes that the Forest Service's explanation provides a rational basis for its decision not to reinitiate formal consultation and is neither arbitrary nor capricious.
Photo above of little brown bats with White Nose Syndrome, by Nancy Heaslip of the New York Dept. of Environmental Conservation, available from FWS Northeast Region. In contrast, photo below by Merlin Tuttle of Indiana bats in Kentucky's Bat Cave State Nature Preserve.