ELR Citation: 53 ELR 20084
No(s). 22-8031 (10th Cir. May 25, 2023)

The Tenth Circuit affirmed in part and reversed in part dismissal of a challenge to the Forest Service's approval of grazing permits in Bridger-Teton National Forest that authorized the "lethal take" of grizzly bears. Environmental groups challenged the approval, arguing FWS violated the ESA because its biological opinion (BiOp) was deficient regarding grizzly bears, that the Forest Service violated the ESA by relying on the BiOp in its record of decision (ROD), and that the Forest Service violated the National Forest Management Act because the ROD failed to adequately consider the grazing's impact on sensitive amphibians and migratory birds. The court found FWS' failure in the BiOp to consider a limit on lethal take of female grizzly bears and the grazing's likely contribution to the already-existing mortality sink for female grizzlies in the area were arbitrary and capricious, and that the Forest Service's reliance on the BiOp was arbitrary and capricious. It also found that the ROD's failure to consider the adequacy of forage and cover for migratory birds in the area was arbitrary and capricious, but that its analysis with respect to sensitive amphibians was not. It remanded to the agencies without vacatur to address the deficiencies in the BiOp and ROD.