The United States District Court for the District of Montana issued a decision (PDF) on July 27, 2010, in which it held that the Forest Service violated the National Environmental Policy Act (NEPA) and the Fish and Wildlife Service and National Marine Fisheries Service violated the Endangered Species Act (ESA) when those agencies issued an Environmental Assessment, Finding of No Significant Impact, and biological opinions for the use of chemical fire retardant to fight wildfires on Forest Service lands. The decision is described in this article.
In 2003, the Forest Service Employees for Environmental Ethics filed a lawsuit challenging the Forest Service’s use of chemical fire retardant. The court granted summary judgment for plaintiffs on the grounds that federal defendants had failed to comply with NEPA and the ESA. Eventually, the Forest Service issued its Environmental Assessment and Finding of No Significant Impact (FONSI) pursuant to NEPA and the Fish and Wildlife Service and National Marine Fisheries Service issued their biological opinions pursuant to the ESA. In response the Forest Service Employees for Environmental Ethics filed another lawsuit.
Both the Fish and Wildlife Service and National Marine Fisheries Service issued programmatic biological opinions that included jeopardy and adverse modification determinations for numerous species. Neither agency issued an incidental take statement to accompany its biological opinion, but both agencies issued a reasonable and prudent alternative (RPA) pursuant to section 7(b)(3)(A) of the ESA.
The Court invalidated the RPA issued by the Fish and Wildlife Service because the RPA was based on guidance rather than mandatory restrictions that left ultimate discretion to the action agency and elevated fire suppression over the protection of jeopardized listed species. In addition, the court granted summary judgment to plaintiffs because both agencies failed to issue incidental take statements. The court was not persuaded that the Fish and Wildlife Service RPA or subsequent emergency consultations by NMFS would be sufficient to protect the species absent incidental take statements.
The court also rejected the Forest Service’s FONSI because the jeopardy findings of the ESA agencies constitute significant impacts that are not alleviated by the [RPA]. The court required the agencies to comply with the requirements of the ESA and NEPA by December 31, 2011.
Paul Weiland is chair of Nossaman’s Environment & Land Use Group. He focuses his practice on litigation, permitting, and compliance counseling. Paul’s clients include public agencies, publicly regulated utilities, private ...
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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