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
Use of Large-Scale Analysis
To determine the mine's impact on critical habitat for the
bull trout, FWS conducted a "large-scale analysis" in
which it compared the relatively small area of affected critical
habitat to the total area of critical habitat. Rock Creek Alliance
argued that this was improper. But the court upheld FWS's
approach because it did not focus solely on the scale of the
impact, but also on other features such as duration of the impact
and effects on the habitat's functionality. FWS acted
reasonably because it did not use large-scale analysis in an
"attempt to hide the local impacts of the action."
Failure to Consider Recovery in a Separate Section of
Rock Creek Alliance argued that FWS failed to adequately analyze
the mine's impact on bull trout recovery. The court disagreed.
Even though FWS did not address recovery in a "separate,
distinct section" of the biological opinion, as contemplated
by an FWS guidance memorandum, it did explicitly address the issue
of recovery elsewhere. Thus, giving a fair reading to the
biological opinion and appropriate deference to the agency, the
court found that FWS had adequately considered bull trout
Improper Method of Calculating Mitigation Habitat
Rock Creek Alliance alleged that in calculating mitigation
habitat requirements for the grizzly bear, FWS failed to account
for the effect of existing development on proposed mitigation
habitat. The court disagreed, noting that FWS had expressly
acknowledged the effects of existing development on mitigation
habitat. In addition, the court found that FWS was not required to
replace affected habitat on an acre-for-acre for basis. More
importantly, the court found that the mitigation plan was "
multi-faceted," including activities beyond Revett's
required acquisition of mitigation land parcels, and that
"collectively, the measures would reduce, remove or more than
offset the potential adverse effects of the proposed
Speculative Habitat Mitigation Plan
Rock Creek Alliance argued that the grizzly bear habitat
mitigation plan was unreasonably speculative. The court rejected
this argument, noting that the mine could not open until it had
satisfied mitigation requirements, that the mine had already
purchased 273 acres of mitigation land, and that the mine was
required to post a bond or a establish a trust fund to ensure its
compliance. Thus, FWS had satisfied the requirement of having
"binding and specific plans," "solid
guarantees," and a "clear, definite commitment of
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Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
The Mintz Levin Energy & Clean Technology practice group worked on over 45 transactions in 2013 and helped energy and clean technology clients on a wide range of matters, including financing transactions, joint ventures and other arrangements with investors and global corporations from the United States, China, Russia, Europe, India and Japan.