Ninth Circuit defers to U.S. Forest Service Record of Decision, even without a biological opinion
Alliance for the Wild Rockies v. U.S. Forest Service, No. 08-35841, 2009 WL 3600522 (9th Cir. Nov. 2, 2009)
BACKGROUND: On April 16, 2007, Forest Supervisor Paul Bradford signed the Northeast Yaak Record of Decision (ROD) to implement "Alternative C" with Modifications. This project includes fuels reduction and other vegetation management, wildlife habitat improvement, watershed rehabilitation, and access management changes on the Three Rivers Ranger District. See Kootenai National Forest. The analysis area contains approximately 10,046 acres in designated old growth management areas including habitat for the Grizzly Bear, Gray Wolf, Bald Eagle, Peregrine Falcon, Elk, White-tailed Deer, Mountain Goat and Pileated Woodpecker.
RULING: To the extent the appeal can be read to encompass the adequacy of consultation with respect to the 1987 Forest Plan as applied in 2007, we believe that the decisional documents for the Northeast Yaak Project--the 2007 ROD, the 2007 Supplemental Biological Assessment, and the Final Supplemental Environment Impact Statement--are sufficient to warrant deference. See Kern County Farm Bureau v. Allen, 450 F.3d 1072, 1080-81 (9th Cir.2006); Trout Unlimited v. Lohn, 559 F.3d 946, 959 (9th Cir.2009) ("It is not our role to ask whether we would have given more or less weight to different evidence, were we the agency. Assessing a species' likelihood of extinction involves a great deal of predictive judgment. Such judgments are entitled to particularly deferential review."). The agencies are not obliged to adopt specific findings of any particular study; rather, "consideration" suffices. Kern, 450 F.3d at 1081. Here, both the 1997 Wakkinen Study and mortality data from 2000-2005 were "considered." As the Forest Service took note of the Wakkinen Study as well as new evidence of bear mortality, and its human causes--and the Alliance points to no data that was omitted from consideration--we cannot conclude that its final action was arbitrary and capricious. See Lands Council v. McNair, 537 F.3d 981, 993 (9th Cir.2008) (en banc).
KEITHINKING: An unusualy deferential opinion, the Court accepted the U.S. Forest Service's analysis, even without an FWS biological opinion. However, the decision was "not for publication in West's Federal Reporter" and thus, can be cited as only persuasive authority. Also, the opinion included a dissent saying that the Federal Defendants failed to consider the best available science and most recent 2007 data.