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ESAblawg is an educational effort by Keith W. Rizzardi. Correspondence with this site does not create a lawyer-client relationship. Photos or links may be copyrighted (but used with permission, or as fair use). ESA blawg is published with a Creative Commons License.

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florida gators... never threatened!

If you ain't a Gator, you should be! Alligators (and endangered crocs) are important indicator species atop their food chains, with sensitivity to pollution and pesticides akin to humans. See ESA blawg. Gator blood could be our pharmaceutical future, too. See ESA musing.


Follow the truth.

"This institution will be based on the illimitable freedom of the human mind. For here we are not afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left free to combat it." -- Thomas Jefferson to William Roscoe, December 27, 1820.


Thanks, Kevin.

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

« Federal judge in Arizona defers to FWS and Forest Service analysis, rejects claims of effects on Mexican spotted owl | Main| Federal judge denies permanent injunction against animal trapping in Maine, finds no irreparable harm to Canada lynx population »

Ninth Circuit defers to U.S. Forest Service Record of Decision, even without a biological opinion

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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.