9th Circuit Upholds Biological Opinions for Proposed Mine: Rock Creek Alliance v. U.S. Fish and Wildlife Service, No. 10-35596 (9th Circuit Court of Appeal; November 16, 2011)

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This month the 9th Circuit upheld the Fish and Wildlife Service's biological opinions finding that a proposed silver and copper mine in northwestern Montana would not result in "adverse modification" to critical habitat of the bull trout or "jeopardy" to the grizzly bear, both of which are federally listed as threatened species.

Rock Creek Alliance, an environmental plaintiff, had challenged the two biological opinions, alleging that the FWS had violated the Endangered Species Act and acted arbitrarily and capriciously in making the “no jeopardy” and “no adverse modification” findings. The district court upheld the FWS’s determinations, and Rock Creek Alliance appealed raising four alleged defects. In a brief opinion that gave “deference due to the agency,” the court rejected each of the four claims.

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