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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.

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"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.

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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.

« In controversial announcements, FWS publishes draft environmental assessment on Idaho plan for legal take of wolves, and declines to list Pacific Walrus | Main| ESA news: Montana House votes to nullify the ESA, Sacramento Delta, and owls vs. owls »

U.S. District Court in Idaho upholds Endangered Species Act analysis of Forest Service's roadless rule

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JAYNE v. REY, Under Secretary for National Resources and Environment, U.S. Department of Agriculture, 2011 WL 337941 (D.Idaho), Case No. 4:CV 09-015-BLW (B. LYNN WINMILL, Chief Judge).

BACKGROUND: In the 1970s, the Forest Service began to develop an inventory of roadless areas within National Forests. The Forest Service designated roadless areas of more than 5,000 acres as “inventoried roadless areas” (IRAs). Today, there are over 58.5 million acres contained in IRAs throughout the National Forest system. The lack of development within the IRAs makes them “bastions for public drinking water, plant and animal diversity, natural appearing landscapes, and other unique characteristics.” FEIS at 386.  
Concerned about encroaching development, the Forest Service promulgated in 2001 the Roadless Area Conservation Rule (“2001 Roadless Rule”) to “prohibit road construction, reconstruction, and timber harvest in inventoried roadless areas because they have the greatest likelihood of altering and fragmenting landscapes, resulting in immediate, long-term loss of roadless area values and characteristics.” 66 Fed.Reg. 3244 (Jan. 12, 2001).
    The 2001 Roadless Rule was nation-wide in scope and did not contain variations tailored for each State. As a result, “some states and communities felt disenfranchised by the process.” 73 Fed.Reg. at 61457 (October 16, 2008). In 2005, the Forest Service opted for a new approach, inviting States to submit petitions to adjust the management requirements for the IRAs within their borders. In conjunction with this new approach, the Department of Agriculture (USDA) created the Roadless Area Conservation National Advisory Committee (RACNAC)…
    In 2005, Idaho's Governor began a collaborative process to draft a state petition governing the 9.3 million acres of IRAs within the State. The State submitted the petition to the RACNAC in 2006, and then-Governor James Risch and his staff met with RACNAC in Washington D.C. to discuss the petition and clarify their intent… The resulting Idaho Rule-known as the Idaho Roadless Rule-creates different categories of lands within Idaho's 9.3 million acres of IRAs based on the specific attributes of those lands, and then applies different management “themes” to each category: Wild Land Recreation (WLR); Primitive areas; or Special Areas of Historic or Tribal Significance theme (“SAHTS”); Backcountry/Restoration (BCR); and General Forest, Rangeland, Grassland (GFRG).

Endangered Species Act Analysis
    Before putting the Idaho Roadless Rule in place, the Forest Service consulted with the Fish and Wildlife Service (FWS) under Section 7 of the Endangered Species Act (ESA) after finding that the new Rule “is likely to adversely affect eight listed species.” See FWS Biological Opinion at 12. As a result of the consultation, the FWS issued a Biological Opinion finding that the new Rule is not likely to jeopardize the continued existence of any listed species. Id.
    The Idaho Roadless Rule authorizes roads and logging in IRAs that contain habitat for the grizzly bear and the caribou, two species listed under the ESA. In conjunction with its Section 7 consultation with the Forest Service, the FWS discussed the effect of the Rule on both species in a Biological Opinion…
    The FWS's Biological Opinion showed that the caribou and grizzly bear populations are small and fragile, and the adverse effects of more permissive rules for IRAs in the GFRG and BCR areas could be “serious” for the grizzly bear and “significant” for the caribou. Id. at 145, 106. In both cases, the FWS discounted the potential for adverse effects in large part due to the Forest Service's commitment of future protection. Plaintiffs argue that the FWS cannot rely on such commitments…
    While the FWS properly considered the letters, the question remains whether it properly relied on the letters to find that harmful road building was not reasonably certain to occur. Here, there is no evidence casting doubt on the IPNF Forest Supervisor's commitments. Indeed, the FWS cited specific actions taken by the IPNF consistent with its commitment to preserve the habitat for the grizzly and caribou…

Conclusion
    The Court finds the FWS did not violate the ESA in preparing the Biological Opinion. The Court also finds that the Forest Service did not violate NEPA in relying on the Biological Opinion or in preparing the FEIS and ROD approving the Idaho Roadless Rule. For these reasons, the Court will grant the defendants' motions for summary judgment and deny plaintiffs' motion for summary judgment. The Court will issue a separate Judgment as required by Rule 58(a).

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Western Tradition Partnership, a grassroots lobbying organization, launched a campaign against the designation of "Roadless Wilderness" on 24 million acres focused in Montana, Idaho, Wyoming, and smaller parts of Washington and Oregon. Many of the areas in green on this map fell within the area at issue in the litigation described above.  Map from sovereignstateproject.org