In Jayne v. Sherman, --- F.3d ---, 2013 U.S. App. Lexis 417, *1 (9th Cir. Jan. 7, 2013), the United States Court of Appeals for the Ninth Circuit upheld (pdf) a biological opinion issued by the U.S. Fish and Wildlife Service (FWS) regarding the Idaho Roadless Rule. Plaintiffs argued that FWS violated the Endangered Species Act (ESA) by improperly relying on commitments from the U.S. Forest Service regarding the impact of the rule on listed grizzly bear and caribou. In rejecting plaintiffs’ arguments, the court found that FWS reasonably relied on the Forest Service’s commitments to preserve and protect the habitat of the species.
The Idaho Roadless Rule, adopted in late 2006, governs the use of 9.3 million acres of “inventoried roadless areas” within National Forests in Idaho. The rule creates five categories of land based on the land’s specific attributes, and then applies different management schemes to each category. Under section 7 of the ESA, the Forest Service consulted with FWS regarding the effects of the rule on grizzly bear and caribou. Section 7 of the ESA mandates consultation where an agency action may affect a listed species and prohibits agency action that, either directly or indirectly, is "likely to jeopardize the continued existence" of any endangered or threatened species or "result in the destruction or adverse modification" of its critical habitat. 16 U.S.C. § 1536(a)(2). Indirect effects are defined as "those that are caused by the proposed action and are later in time, but still are reasonably certain to occur." 50 C.F.R. § 402.02. In September 2008, FWS issued a biological opinion finding that the Idaho Roadless Rule was not likely to jeopardize the continued existence of any listed species. Specifically, FWS determined that, since the rule did not directly approve the building of any particular road, it did not have a direct impact on the listed species. But, since the rule made it easier to build roads in some areas in the future, it could have an indirect impact on the species if the road building was “reasonably certain to occur.”
FWS found that the Forest Service’s Long Range Management Plan (LRMP) in the Idaho Panhandle National Forest, as well as future Forest Service commitments to preserve the species’ habitat, offered sufficient protection for the grizzly bear and caribou. Specifically, based on assurances from the Forest Service regarding a proposed amendment to the LRMP that would limit motorized access in the region and a stated intention to maintain and manage the species habitat in accordance with the best available science, FWS concluded that road construction was not reasonably certain to occur, and thus would not adversely effect the listed species.
Plaintiffs challenged FWS’s determination, citing National Wildlife Federation v. National Marine Fisheries Service, 524 F.3d 917 (9th Cir. 2008), to argue that it was improper for FWS to rely on promises to protect a listed species. In National Wildlife Federation, the Ninth Circuit held that the National Marine Fisheries Service (NMFS) improperly relied on agency commitments to install structural improvements on the Columbia River to protect listed salmon because the commitments were “general” in nature and not “solid guarantee[s].” The court reasoned that, since the proposed action would cause “immediate negative effects” on the listed species, NMFS could only rely on promises of future action that were “specific and binding.” The Ninth Circuit distinguished National Wildlife Federation on the grounds that, with respect to the Idaho Roadless Rule, there were no “immediate negative effects” on the listed species because road construction was not reasonably certain to occur. As such, there was no compelling reason to require promises to be “binding” or “guaranteed.” The court found that FWS had not acted arbitrarily in relying on the Forest Service’s commitments because there was no evidence casting doubt on such commitments or suggesting that the commitments were based on an implausible rationale. The court upheld FWS’s conclusion that the Idaho Roadless Rule would not jeopardize the grizzly bear or caribou.
The court’s holding stands for the proposition that an agency may rely on non-binding commitments from the federal government in determining that an action will not jeopardize a listed species, so long as the action will not have an “immediate negative effect” on the species. This is a departure from the court’s prior decisions, which required proposed habitat and/or species protections to be “clear, definite commitment[s]” and “solid guarantee[s].” In addition, it is unclear whether the court’s requirement of an “immediate negative effect” would be applied on a sliding scale. That is, it is unclear whether future negative effects could rise to the level of requiring commitments to be “solid,” as is required when immediate negative effects are present.
The court also upheld a final environmental impact statement that the Forest Service prepared pursuant to the National Environmental Policy Act (NEPA), finding that the Forest Service reasonably estimated the Idaho Roadless Rule’s impact on logging and mining by assuming that its lean budget would not allow construction of any permanent roads in the region. Similarly, the court upheld the Forest Service’s NEPA determinations with respect to phosphate mining and logging activities in the Winegar Hole area.