ELR Citation: ELR 20318
No(s). CV 89-121-H-CCL (D. Mont. Dec 7, 1992)

The court holds that environmental groups have standing under the citizen suit provisions of the Endangered Species Act (ESA) to challenge the U.S. Fish and Wildlife Service's (FWS') reliance on a biological opinion developed by the U.S. Forest Service (Service) on the Forest Plan for the Flathead National Forest in Montana, but that the FWS' biological opinion complied with the ESA. The court holds that the groups have standing under the ESA's citizen suit provisions. The groups' members have a concrete personal interest in the protection of grizzly bear and gray wolf in the Flathead National Forest, and the members have a right to challenge the Forest Plan. The groups have asserted concrete procedural and substantive injuries that are traceable to the FWS' alleged failure to fully comply with the procedural requirements of the ESA, and the injuries are redressable by the relief sought. The court holds, however, that the FWS has issued a comprehensive biological opinion in full compliance with ESA §7, the FWS properly relied on both the standards and guidelines adopted by the Service and the Service's expertise in concluding that such safeguards will ensure that protected species will not be jeopardized by the Forest Plan. The court next holds that neither the ESA nor its implementing regulations require threatened extinction by habitat modifications to find that harm will result from excessive road densities on the Flathead National Forest. Next, the court holds that the ESA does not require analysis of the resource production objectives, because the standards and guidelines under the Forest Plan operate as parameters within which all future development must take place. The court also holds that the incidental take statement exception in ESA §7(b)(4) does not immunize the Service from takings claims, and that de novo review is the proper standard of review for this issue. The court holds that the less restrictive takings provisions under Montana law are preempted by the ESA. Finally, the court holds that the environmental groups have offered sufficient evidence in support of their grizzly bear takings claims to be heard, because genuine issues of fact have been raised concerning the extent of excessive road densities in the Flathead National Forest, the impact of those densities on the grizzly bear population, and whether the decline in that population is traceable to the open road densities, however, there is insufficient evidence to hear the gray wolf takings claims.

Counsel for Plaintiffs
Douglas L. Honnold, Fern L. Shepard
Sierra Club Legal Defense Fund
1631 Glenarm Pl., Ste. 300, Denver CO 80202
(303) 623-9466

Counsel for Defendants
Steven P. Quarles, Thomas R. Lundquist
Crowell & Moring
1001 Pennsylvania Ave. NW, Washington DC 20004
(202) 624-2500