On August 21, 2014, the United States District Court for the District of Montana remanded the Montana Department of Natural Resources and Conservation Forested State Trust Lands Habitat Conservation Plan (HCP) and suspended the associated Endangered Species Act Section 10(a)(1)(B) Permit(Permit) for incidental take of the threatened grizzly bear. Friends of the Wild Swan v. Jewell, No. CV 13-61 (Aug. 21, 2014). The Montana Department of Natural Resources and Conservation (Department) prepared the HCP to support the U.S. Fish and Wildlife Service’s (Service) issuance of the Permit for take of two mammals and three fish species resulting from increased logging and road building. The Permit area is comprised solely of state trust lands in western Montana that the Department is mandated to manage for purposes of generating revenue for Montana schools.
Plaintiff environmental organizations asserted that the Service improperly issued the Permit for bull trout and grizzly bear because the HCP’s protections for these species do not meet the statutory requirements. The court upheld the HCP and Permit for bull trout. For grizzly bear, the court invalidated the Permit, finding the Service did not rationally support its finding that the impacts of the permitted activities on the bear would be minimized and mitigated to the maximum extent practicable.
The Permit area covers over 500,000 acres within two of the four areas in which grizzly bear populations exist in the lower 48 states, the Northern Continental Divide and Cabinet-Yaak ecosystems. To accommodate the Department’s planned increase in logging activities, the HCP replaced protections prohibiting logging activities outside of the winter denning period over approximately 40,000 acres of designated grizzly bear “core areas” with an alternative program of quiet areas and spring management restrictions. The Service recognized that the HCP’s proposed change would result in take of bears due to displacement of female bears from “key habitat” and would increase human-bear interactions, but reasoned that the take would be minimal based on the relatively small area (less than 2 percent) of grizzly bear core recovery zones that would be affected. Overall, the Service concluded that the take of grizzly bears under the HCP would be fully mitigated and would result in a net benefit for the species.
The issue before the court was whether the HCP’s protections of quiet areas and spring management restrictions satisfy the ESA’s mandate that, to issue a Permit, the Service must find that the HCP minimizes and mitigates the impacts of incidental take “to the maximum extent practicable.” 16 U.S.C. 1539(a)(2)(B)(ii). Because neither the ESA nor the implementing regulations define “maximum extent practicable,” the court set forth the following principles to guide its analysis:
(i) The statutory language of “maximum extent practicable” signifies that the HCP applicant may do something less than fully minimize and mitigate the impacts of the take where to do more would not be practicable.
(ii) The “maximum extent practicable” standard does not suggest that measures beyond that necessary to mitigate for the project’s effects of take of species are ever required.
(iii) Where the level of mitigation provided for in the HCP clearly compensates for the take that will occur, the Service is under no obligation to inquire whether additional mitigation is financially feasible.
A corollary to (iii), above, is that where there is a close call as to whether an HCP adequately mitigates for the project’s take, the Service is required to consider whether additional protective measures would be practicable. The court found that the HCP record did not contain evidence sufficient to show that the HCP’s program of quiet areas and spring management restrictions offered equivalent protections for grizzly bears as compared to the original core area designations, much less an improvement in conditions – in other words, a close call.
The court held that absent a rational connection between the facts (HCP’s grizzly bear conservation strategy may not improve the bears’ conditions and will increase take of bears) and the Service’s conclusion (HCP completely offsets the impacts of increased logging and road building to grizzly bear), the Service’s finding that the HCP mitigates take of grizzly bears to the maximum extent practicable was arbitrary and capricious.
Upon remand, the Service may choose to take the court’s advice – that the HCP’s grizzly bear conservation strategy’s ability to offset the project’s impacts is a close call – and investigate whether additional mitigation measures to reduce project impacts to the bear would be practicable.