Court Holds Biological Assessment Reviewable, But Denies Temporary Injunctive Relief

On July 17, 2013, the United States District Court for the District of Oregon, after finding that the plaintiffs could not establish a likelihood of success on the merits, denied (pdf) a motion to enjoin a 28,545 acre vegetation management project that involved the commercial and non-commercial harvest of over 20,000 acres of forest (the "Project").

In 2011, the U.S. Forest Service ("Forest Service") issued a biological assessment concluding that the Project may affect, but was not likely to adversely affect, the threatened bull trout (Salvelinus confluentus) or its designated critical habitat.  The biological assessment asserted that the Project would not effect the bull trout because the fish was not present in the surrounding watershed.  In 2012, the U.S. Fish and Wildlife Service ("Wildlife Service") issued a letter of concurrence.  Plaintiffs subsequently filed suit alleging that the Forest Service and Wildlife Service violated the Endangered Species Act and National Environmental Policy Act.  The plaintiffs alleged that the defendants violated the Endangered Species Act because they failed to use the best available science when analyzing the Project's effects on bull trout.  Specifically, the plaintiffs alleged that the defendants ignored reports from 1995 and 2005 concluding that the status of the bull trout in the surrounding watershed was "unknown."

In opposing the motion for preliminary injunction, the defendants first argued that because the plaintiffs were essentially challenging the biological assessment, and a biological assessment generally does not constitute a final agency action subject to review, the Endangered Species Act challenge failed as a matter of law.  The district court rejected this argument, stating that the biological assessment "is subject to review because the [Letter of Concurrence] expressly relied on the [biological assessment] when determining the bull trout did not exist in the . . . watershed and that no formal consultation was necessary."  

Next, setting the stage for its eventual decision, the district court stated that "[a]n agency is not obliged to conduct independent studies to improve upon the best available science or to resolve inconclusive aspects of scientific information," and that "[w]hen there are differing views as the impact of any agency action on a protected species, . . . an agency has the discretion to rely on the reasonable opinion of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive.'" 

Addressing the substance of the plaintiffs' argument, the prior reports concluding that the status of the bull trout in the surrounding watershed was unknown, the court found that the 1995 report was based on the same snorkeling surveys that defendants' relied on, which "failed to find bull trout" in the surrounding watershed.  Accordingly, although defendants relied on snorkeling surveys that were more than 15 years old, the court found that defendants complied with the Endangered Species Act because the surveys represented the best available science, and defendants were not obligated to conduct new surveys or studies.  

The court also found that the defendants properly assessed bull trout habitat to conclude that bull trout did not and cannot exist in the watershed.  Thus, the court held that plaintiffs failed to establish a likelihood of success on the  merits.

  • Benjamin Z. Rubin

    Ben Rubin is chair of Nossaman’s Environment & Land Use Group. Ben assists developers, public agencies, landowners and corporate clients on a variety of complex land use and environmental matters. He counsels clients on matters ...

Nossaman’s Endangered Species Law & Policy blog focuses on news, events, and policies affecting endangered species issues in California and throughout the United States. Topics include listing and critical habitat decisions, conservation and recovery planning, inter-agency consultation, and related developments in law, policy, and science. We also inform readers about regulatory and legislative developments, as well as key court decisions.

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