Sep 242014
 

Two projects calling for prescribed burns, timber harvesting and thinning in the Flathead National Forest stayed on track after the Ninth Circuit said environmental groups did not present enough evidence to warrant halting them (Friends of the Wild Swan v. Weber. 13-35817, and Friends of the Wild Swan v. Christiansen, 13-35819).

Technically, the appeals court affirmed a district court judge's rejection of a request for injunctive relief to stop the neighboring projects -- the Spotted Bear River Project and the Soldier Addition II Project.

The district court decisions are Friends of the Wild Swan v. Weber, 955 F. Supp. 2d 1191 (D. Mont. 2013) and Friends of the Wild Swan v. Christiansen, 955 F. Supp. 2d 1197 (D. Mont. 2013).

In each case, the plaintiffs claimed that the Forest Service violated the National Environmental Policy Act, the National Forest Management Act and the Endangered Species Act. Species adversely affected by the projects include the westslope cutthroat trout, grizzly bear, Canada lynx, and bull trout, the groups said.

The selection of particular geographic areas for considering cumulative effects on lynx "was neither arbitrary nor capricious, and Wild Swan has not demonstrated a likelihood of success or serious questions
going to its NEPA claim with respect to lynx," the court said. It reached a similar conclusion with regard to the effects on grizzlies.

Regarding fisheries, the court said, in part:

Wild Swan correctly points out that the EAs did not specifically consider the impact to the main channel of South Fork if the “worst-case” scenario for both projects occurred and delivered sediment to the main channel simultaneously. However, even assuming Wild Swan has shown a possibility of success on this issue or at least serious questions on the merits, we nonetheless affirm the denial of the preliminary injunction because Wild Swan has not established a likelihood of irreparable harm to the fisheries in the absence of an injunction. See Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011) (“[P]laintiffs must establish that irreparable harm is likely, not just possible, in order to obtain a preliminary injunction.”). Both [Environmental Assessments] indicate it is highly unlikely that the “worst-case scenario” event (intense storm following prescribed burn) for either project would ever occur because of the seasonal timing of the burns, and thus it appears doubly unlikely that all potential sediment discharge from both projects would occur simultaneously.

 

 

Wolves in Wyoming back on the list

 Posted by on September 24, 2014
Sep 242014
 

Gray wolves in Wyoming are back on the endangered species list after a federal judge in Washington, D.C., said the Fish and Wildlife Service could not "rely on nonbinding and unenforceable representations when it concluded that the state’s plan was adequate to ensure that the state will in fact maintain the necessary number of breeding pairs and individual wolves" (Defenders of Wildlife v. Jewell, 12-1833 ABJ, D.D.C.).

U.S. District Judge Amy Berman Jackson's opinion

Said Jackson:

"This opinion does not go so far as to hold that the FWS may not ever consider nonbinding statements as part of the mix when assessing the adequacy of a set of regulatory mechanisms as a whole; it finds that it was unreasonable in this instance for FWS to determine that it was necessary for Wyoming to manage for more than ten breeding pairs and 100 wolves as a condition for delisting but then accept a plan that did not commit to that."

Earthjustice, et al. press release on decision

More coming on this story...

Excerpts from opinion:

Since the decision to delist is expressly premised on the state’s intention to manage to maintain a buffer above 10/100, the next question for the Court to resolve is whether it was proper for FWS to rely on nonbinding and unenforceable representations when it concluded that the state’s plan was adequate to ensure that the state will in fact maintain the necessary number of breeding pairs and individual wolves.

In this case, the agency did not merely consider the nonbinding statements in the Addendum as one aspect of the state’s overall regulatory scheme: two out of five of the original peer reviewers found the regulatory mechanisms to be inadequate in the absence of a buffer, and the Addendum was submitted by the state in response. The record reflects that FWS specifically relied on the representations in the Addendum as the basis for its conclusion that Wyoming would do what the agency had determined that it must do: manage above the 10/100 minimum. The Court finds that under those circumstances, the reliance on mere assurances was inappropriate, and it rendered the FWS decision arbitrary and capricious. This opinion does not go so far as to hold that the FWS may not ever consider nonbinding statements as part of the mix when assessing the adequacy of a set of regulatory mechanisms as a whole; it finds that it was unreasonable in this instance for FWS to determine that it was necessary for Wyoming to manage for more than ten breeding pairs and 100 wolves as a condition for delisting but then accept a plan that did not commit to that. See Colorado River Cutthroat Trout v. Salazar, 898 F. Supp. 2d 191, 207–08 (D.D.C. 2012) (“while the FWS cannot rely on promised and unenforceable conservation agreements in evaluating regulatory mechanisms . . . its consideration of the Conservation Strategy as part of its overall assessment of ongoing management practices is not inappropriate.”). Accordingly, the Court holds that the Service’s determination that Wyoming’s regulatory scheme was adequate under the ESA was arbitrary and capricious.

Footnote 8: In Greater Yellowstone Coalition, Inc., v. Servheen, 665 F. 3d 1015, 1030–31 (9th. Cir. 2011), the plaintiffs raised concerns similar to those here that the Service had relied upon too many measures that were not legally binding when delisting the grizzly bear. But the court declined to reach the question of whether a voluntary, unenforceable measure could constitute a “regulatory mechanism” under §1533(a)(1)(D); instead it ruled that even if the Service’s consideration of the voluntary and unenforceable components of the multi-state conservation plan was error, the determination could be upheld based upon legally binding components alone. That option is not available here since the delisting decision depends expressly upon the state’s commitment to manage above the 10/100 minimum number.

Links

Wyoming wolf delisting challenged in federal court (EJ release, 12/17/13)

FWS gray wolf page

Service Declares Wyoming Gray Wolf Recovered Under the ESA and Returns Management Authority to the State (8/31/2012)