663 F.3d 439
9th Cir.2011Background
- Revett Silver proposed a copper and silver mine in northwest Montana, partly on Forest Service land, triggering ESA review for bull trout and grizzly bear.
- Forest Service conducted formal Section 7 consultations; FWS issued two biological opinions finding no adverse modification and no jeopardy.
- Rock Creek Alliance challenged the biological opinions as arbitrary and unlawful under the ESA; district court granted summary judgment for FWS and Revett.
- Rock Creek appealed asserting four deficiencies: large-scale analysis, bull trout recovery consideration, grizzly mitigation habitat methodology, and speculative mitigation plan.
- The Ninth Circuit reviews under the APA, evaluating whether the agency acted arbitrarily, capriciously, or contrary to law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether large-scale analysis invalidates the bull trout impact evaluation | Rock Creek argues local impacts were ignored by relying on scale. | FWS properly compared relative habitat sizes and considered local factors and duration. | Not error; analysis reasonable and not solely scale-based. |
| Whether the mining impact on bull trout recovery was adequately addressed | Recovery implications were inadequately addressed in the opinion. | Recovery was considered; deference due to agency and presumption of regularity applies. | Adequately considered; no reversal required. |
| Whether the grizzly mitigation habitat methodology was flawed due to not discounting existing development | Mitigation land discounting was improperly applied or ignored | Mitigation plan is multi-faceted and does not require strict acre-for-acre replacement. | Not flawed; mitigation package sufficiently supports no-jeopardy finding. |
| Whether the mitigation plan was unreasonably speculative | Plan relied on uncertain future actions and funding. | Plan included binding commitments, funding, and enforceable conditions. | Not speculative; plan with commitments and trust/funding provisions. |
Key Cases Cited
- Gifford Pinchot Task Force v. U.S. Fish & Wildlife Service, 378 F.3d 1059 (9th Cir. 2004) (deference to agency; local impacts considered in context)
- Ariz. Cattle Growers' Ass'n v. Salazar, 606 F.3d 1160 (9th Cir. 2010) (APA review standard for agency actions)
- Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv., 524 F.3d 917 (9th Cir. 2008) (requirement of specific, binding mitigation actions)
- Fed'n of Fishermen's Ass'ns v. Nat'l Marine Fisheries Serv., 265 F.3d 1028 (9th Cir. 2001) (evaluating agency's assessment of localized risk vs. broader analysis)
- Selkirk Conservation Alliance v. Forsgren, 336 F.3d 944 (9th Cir. 2003) (upholding no-jeopardy conclusion due to comprehensive mitigation)