Rock Creek Alliance v. USF & W

Reviewing a challenge to biological opinions issued by the U.S. Fish and Wildlife Services, the opinions will be upheld so long as they are not arbitrary, capricious, or in violation of the Endangered Species Act.

Rock Creek Alliance (“RCA”) appeals a grant of summary judgment in favor of the U.S. Fish and Wildlife Service relating to a mine to be built on land in Montana that is managed by the U.S. Forest Service. Because it could impact species listed as threatened under the Endangered Species Act, the Forest Service was required to consult with the Fish and Wildlife Service. The Fish and Wildlife Service issued two biological opinions and concluded there would be no adverse impact and it would result in no jeopardy to the species. RCA challenges the biological opinions, arguing they were arbitrary, capricious, and in violation of the Endangered Species Act. On appeal, the Ninth Circuit affirmed, and held that the Fish and Wildlife Service’s determinations were not arbitrary, capricious, or in violation of the Endangered Species Act. Reviewing the decision, the Ninth Circuit found: (1) the Fish and Wildlife Service’s conclusion was properly based on the scale of the impact, as well as the duration and level with which the functionality of the habitat would be diminished; (2) the Fish and Wildlife Service’s actions were reasonable under Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service, 378 F.3d 1059 (9th Cir. 2004); (3) the Fish and Wildlife Service properly considered the mine’s impact on the species’ recovery; and (4) while the Fish and Wildlife Services failed to address recovery of the species in a separate opinion, under Gifford Pinchot, they are presumed to have considered the recovery unless rebutted by evidence in the record to the contrary. AFFIRMED.