Endangered Species Law & Policy

On November 16, 2011, the United States Court of Appeals for the Ninth Circuit issued a ruling (PDF) affirming a lower court’s decision (PDF) that two U.S. Fish and Wildlife Service’s (FWS) biological opinions (BiOp) for a proposed 1500-acre mining project in the Cabinet Mountain Wilderness on the Kootenai National Forest met the legal standards set forth in the Endangered Species Act and Administrative Procedure Act. The Court upheld the BiOp’s conclusions that construction and operation of the mine would not adversely modify bull trout critical habitat or jeopardize the continued existence of grizzly bear population in the lower 48 states of the United States. 

FWS determined that construction and operation of the mine would not adversely modify bull trout critical habitat based primarily on the relatively small footprint of project impacts to critical habitat-- less than three stream miles-- as compared to the much larger 135-stream mile critical habitat core area. The Court agreed that such large-scale critical habitat analysis is appropriate provided localized impacts are not masked or ignored. The BiOp included a complete evaluation of the physical and biological characteristics necessary for the bull trout’s survival and concluded that all essential elements would remain functional throughout the project’s lifetime.  For this and other reasons, the Court affirmed FWS’s no adverse modification conclusion. 

The Court also upheld the BiOp’s no jeopardy conclusion for grizzly bears based on the project’s comprehensive mitigation plan for the affected Cabinet-Yaak population, which was expected to promote grizzly recovery over the long-term.