ELR Citation: 55 ELR 20026
No(s). 23-2882 (9th Cir. Feb 24, 2025)

In an unpublished opinion, the Ninth Circuit affirmed in part and reversed in part a district court ruling in a lawsuit over a logging project in Kootenai National Forest. Conservation groups sued the Forest Service and FWS, arguing the project's approval violated the ESA, NEPA, and the National Forest Management Act (NFMA). The district court concluded FWS violated the ESA's best available data requirement by failing to consider documented grizzly bear mortalities and failing to adequately credit annual minimum count data that showed a decline in the number of bears, and that the Forest Service violated the ESA by relying on the legally flawed biological opinion (BiOp). It also concluded the Forest Service violated NEPA by relying on stale bear population data in establishing the environmental baseline in its final EA and by failing to take a "hard look" at unauthorized road use, and violated NFMA by failing to demonstrate compliance with an access standard in the 2015 forest plan. The appellate court found FWS relied on a sound statistical method and considered all relevant factors in establishing the environmental baseline in its BiOp, that it was not arbitrary and capricious for the Forest Service to have approved the project pursuant to the BiOp, and that the Service's reliance on stale population data was a harmless error; but that the Service did fail to demonstrate substantial compliance with the access standard in violation of NFMA and failed to take the required hard look at road use. It affirmed in part, reversed in part, and remanded for further proceedings.