ELR Citation: ELR 20691
No(s). 92-15269 (9th Cir. Mar 3, 1993)

The court holds that changes by the U.S. Forest Service and the University of Arizona in the implementation of a program mandated by the Arizona-Idaho Conservation Act (AICA) to monitor the impact of the construction of the Mt. Graham International Observatory in Arizona, on the endangered Mt. Graham red squirrel, did not constitute violations of the AICA and were not arbitrary or capricious. Section 603(b) of the AICA mandates consultation under §7(a)(2) of the Endangered Species Act (ESA) and requires consideration of all biological data, and §606 sets forth a clear indication of what the statutorily mandated monitoring program requires. The court holds, however, that the plaintiff environmental groups failed to demonstrate any obligations with respect to the monitoring program that tie the hands of the Forest Service. Any deviation from the monitoring program has no legal significance, and thus, is not per se violative of the AICA. The court also holds that its judicial review is limited to whether the Forest Service conducted a reasoned evaluation of the relevant information and reached a decision that was not arbitrary and capricious. The court rejects the groups' argument that, because the monitoring program is not and cannot provide "useful" and "unquestionable" data on the red squirrel, it is therefore "improper" and "inadequate" under the AICA. Federal courts are inappropriate arbiters of questions that require technical expertise that the courts do not possess.

The court next holds that the Forest Service has been neither arbitrary nor capricious in any of its actions with respect to the monitoring program. Addressing the groups' factual allegations of the monitoring program's deficiencies, the court finds that the group can point to nothing done by the University of Arizona and permitted by the Forest Service that was not based on a consideration of the relevant factors, nor can it demonstrate that the Forest Service has been guilty of any clear errors of judgment. The court also holds that the Forest Service's road-closure decisions have not violated the AICA, finding merit in the Forest Service's explanations for why the roads have been kept open. The court holds that the deaths of two squirrels were covered by the incidental take limit of the program, and therefore were removed from the ambit of being an incidental taking of endangered species, which is prohibited under ESA §9. Finally, relying on the facts on which the merits of the case are based, the court holds that the environmental groups have standing under §10(a) of the Administrative Procedure Act to bring this suit. The groups made a sufficient showing of injury in fact to its scientific, recreational, and aesthetic interests.

[A prior decision in this litigation is published at 22 ELR 20391.]

Counsel for Plaintiffs-Appellants
Mark Hughes
Sierra Club Legal Defense Fund
1631 Glenarm Pl., Ste. 300, Denver CO 80202
(303) 623-9466

Counsel for Defendants-Appellees
M. Alice Thurston
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendant-Intervenor-Appellee
David C. Todd
Patton, Boggs & Blow
2550 M St. NW, Washington DC 20037
(202) 457-6000