Rock Creek Alliance, et al v. USF&W, et al

Filing

FILED OPINION (HARRY PREGERSON, KIM MCLANE WARDLAW and MILAN D. SMITH, JR.) AFFIRMED. Judge: HP Authoring, FILED AND ENTERED JUDGMENT. [7967438]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROCK CREEK ALLIANCE; CABINET
RESOURCE GROUP; EARTHWORKS;
ALLIANCE FOR THE WILD ROCKIES;
NATURAL RESOURCES DEFENSE
COUNCIL; TROUT UNLIMITED; IDAHO
COUNCIL OF TROUT UNLIMITED;
PACIFIC RIVERS COUNCIL; GREAT
OLD BROADS FOR WILDERNESS,
Plaintiffs-Appellants,
v.
U.S. FISH AND WILDLIFE SERVICE,
Defendant-Appellee,
REVETT SILVER COMPANY,
Intervenor-Defendant-Appellee.





No. 10-35596
D.C. No.
9:08-cv-00028DWM
OPINION



Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Argued and Submitted
July 14, 2011—Portland, Oregon
Filed November 16, 2011
Before: Harry Pregerson, Kim McLane Wardlaw, and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Pregerson

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COUNSEL
Douglas L. Honnold, Earthjustice, Bozeman, Montana; Timothy J. Preso (argued), Earthjustice, Bozeman, Montana; Todd
D. True, Earthjustice, Bozeman, Montana; Stephen D.
Mashuda, Earthjustice, Bozeman, Montana, for the plaintiffsappellants.
Ignacio S. Moreno, Assistant Attorney General, Washington,
D.C.; Andrew C. Mergen, Washington, D.C.; Robert H. Oakley (argued), Washington, D.C., for the defendant-appellee.

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Alan L. Joscelyn and KD Feeback, Gough, Shanahan, Johnson & Waterman, PPLP, Helena, Montana; Robert Tuchman
(argued) and Charlotte L. Neitzel, Holme, Roberts & Owen
LLP, Denver, Colorado, for the intervenor-defendantappellee.

OPINION
PREGERSON, Circuit Judge:
Plaintiff-Appellant Rock Creek Alliance appeals the district
court’s grant of summary judgment in favor of DefendantAppellee the U.S. Fish and Wildlife Service and IntervenorDefendant-Appellee Revett Silver Company in an action
brought pursuant to Section 7 of the Endangered Species Act,
which requires federal agencies to consult with the Fish and
Wildlife Service before undertaking any action “authorized,
funded, or carried out” by the agency that might “jeopardize
the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat” used by any endangered or threatened species.
16 U.S.C. § 1536(a)(2). We have jurisdiction under 28 U.S.C.
§ 1291, and we affirm the district court’s well-reasoned opinion.1
1

The district court consolidated the instant case—Rock Creek Alliance’s
case against the Fish and Wildlife Service (D.C. No. 9:08-cv-00028DWM)—with a separate case brought by Rock Creek Alliance against the
U.S. Forest Service (D.C. No. 9:05-cv-00107-DWM). The district court
filed a single opinion resolving both cases on cross-motions for summary
judgment. See Rock Creek Alliance v. U.S. Forest Serv., 703 F. Supp. 2d
1152 (D. Mont. 2010).
In the case against the Forest Service (D.C. No. 9:05-cv-00107-DWM),
the district court granted summary judgment to the Forest Service and
Revett Silver Company on some claims and Rock Creek Alliance on other
claims. The result of this ruling was to set aside the Forest Service’s
Record of Decision and Final Environmental Impact Statement, and to
remand the matter to the Forest Service for further action.

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BACKGROUND
Revett Silver Company proposes to build and operate a
copper and silver mine in northwest Montana, part of which
will be on land managed by the U.S. Forest Service. Because
the mine may impact two species listed as threatened under
the Endangered Species Act—the bull trout and the grizzly
bear—the Forest Service was required to engage in formal
consultations with the Fish and Wildlife Service before
approving the mine. 16 U.S.C. § 1536(a)(1). As a part of
those consultations, the Fish and Wildlife Service issued two
biological opinions that concluded that the mine would result
in “no adverse modification” to critical bull trout habitat and
would result in “no jeopardy” to the local grizzly bear population.2
In the district court, Rock Creek Alliance challenged the
biological opinions, arguing that the Fish and Wildlife Service’s conclusions were arbitrary, capricious, and violated the
Endangered Species Act. The district court disagreed, and
granted summary judgment in favor of the Fish and Wildlife
Service and Revett Silver Company. Rock Creek Alliance
then appealed, arguing that: (1) the Fish and Wildlife Service
improperly relied on large-scale analysis in evaluating the
mine’s impact on bull trout; (2) the Fish and Wildlife Service
did not adequately address the mine’s impact on bull trout
recovery; (3) the methodology for calculating grizzly bear
The two cases were subsequently severed by the district court so that
Rock Creek Alliance could separately appeal the decision in its case
against the Fish and Wildlife Service. Accordingly, the only claims before
us are those asserted by Rock Creek Alliance against the Fish and Wildlife
Service in D.C. No. 9:08-cv-00028-DWM, and our opinion affirms only
the portions of the district court’s opinion relating to that case.
2
The Fish and Wildlife Service also concluded that the mine would
result in “no jeopardy” to the bull trout. Rock Creek Alliance, however,
does not challenge that finding on appeal.

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mitigation habitat was flawed; and (4) the grizzly bear habitat
mitigation plan was unreasonably speculative.
DISCUSSION
We review the district court’s “grant of summary judgment
de novo, reviewing directly the [Fish and Wildlife Service’s]
action under the Administrative Procedure Act [(“APA”)]
. . . .” Ariz. Cattle Growers’ Ass’n v. Salazar, 606 F.3d 1160,
1163 (9th Cir. 2010). Under the APA, we must set aside an
agency’s decision if it is “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.” 5 U.S.C.
§ 706(2)(A).
We now address each of Rock Creek Alliance’s four arguments.
[1] (1) The Fish and Wildlife Service did not err by conducting a large-scale analysis and by relying on the relative
size of Rock Creek critical habitat to evaluate the mine’s
impact on the bull trout. The Fish and Wildlife Service properly compared the relative size of the impacted 2.88 stream
miles of Rock Creek to the overall size of the Lower Clark
Fork Core Area critical habitat—135 stream miles—to determine that the bull trout’s critical habitat would not be
adversely modified. The Fish and Wildlife Service examined
in detail the proposed mine’s impact on each of the critical
habitat elements in the local Rock Creek environment: water
temperature, substrate composition (specifically, increased
sediment load), migratory corridors, channel stability, and
cover. The Fish and Wildlife Service ultimately concluded
that “[a]ll [critical habitat] elements in Rock Creek are
expected to remain functional, albeit at a lower [functional]
level,” and the most significant impacts would only be temporary, lasting five to seven years. Thus, the Fish and Wildlife
Service’s conclusion was not based solely on the scale of the
impact, but also on the duration and the level by which the
habitat’s functionality would be diminished.

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[2] Moreover, the Fish and Wildlife Service’s actions were
reasonable under our decision in Gifford Pinchot Task Force
v. U.S. Fish and Wildlife Service, 378 F.3d 1059, 1075 (9th
Cir. 2004). The agency did not attempt to hide the local
impacts of the action, but considered them in detail. Contra
Fed’n of Fisherman’s Ass’ns v. Nat’l Marine Fisheries Serv.,
265 F.3d 1028, 1035-37 (9th Cir. 2001) (finding that the
National Marine Fisheries Service did not appropriately evaluate the localized impact of the project in issuing their “no
jeopardy” opinion). Because there is no evidence in the record
that the Fish and Wildlife Service masked “some localized
risk . . . by [the] use of large scale analysis,” we should “not
second-guess” the Fish & Wildlife Service’s conclusion that
the mine would not adversely affect the critical habitat. Gifford Pinchot, 378 F.3d at 1075.
[3] (2) The Fish and Wildlife Service did not fail to consider the mine’s impact on bull trout recovery. The Fish and
Wildlife Service explicitly addressed bull trout recovery, concluding that, “[a]t most, the rate of recovery of the core area
population may slow slightly, if at all, assuming fish passage
at the dams and habitat restoration continues and is successful.” The Fish and Wildlife Service also noted that “there may
be a slight slowing in the rate of recovery for the core area
population because of the slight loss in recruitment potential,
but if current efforts to recover [migratory bull trout] . . . continue to be successful and overshadow the potential loss, the
recovery rate of the core area may not be affected.”
[4] The Fish and Wildlife Service did not, however,
address the bull trout recovery issue in separate, distinct sections of the biological opinion, as was contemplated by a
2006 guidance memorandum from the Director of the Fish
and Wildlife Service. But the “[Fish and Wildlife Service]
must be presumed to have followed the adverse modification
regulation,” and to have properly considered the mine’s
impact on critical bull trout recovery, “unless rebutted by evidence in the record” to the contrary. Gifford Pinchot, 378

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F.3d at 1071-72 (“[W]e afford the agency a presumption of
regularity.”). A fair reading of the Fish and Wildlife Service’s
biological opinion, coupled with the deference due to the
agency, leads to the conclusion that the Fish and Wildlife Service adequately considered the impact that the mine could
have on the habitat’s value for bull trout recovery.
[5] (3) The Fish and Wildlife Service’s methodology for
calculating the necessary amount of grizzly bear mitigation
habitat was not flawed merely because the Fish and Wildlife
Service failed to numerically discount the effectiveness of
proposed mitigation parcels because they are already
impacted by existing development. The Fish and Wildlife Service expressly acknowledged the limitations created by existing development on proposed mitigation land. Moreover, the
Endangered Species Act does not require that the Fish and
Wildlife Service replace impacted habitat on an acre for acre
basis, and the Fish and Wildlife Service did not rely on an
acre for acre replacement in making its “no jeopardy” conclusion. To the contrary, the required mitigation plan for the
mine is multi-faceted and includes not only Revett Silver
Company’s required acquisition of mitigation land parcels,
but also management of road and trail access into bear habitat,
management of attractants, information and education programs, increased law enforcement, funding for enhanced
monitoring and research, measures to reduce habitat fragmentation, and the introduction to the area of six female grizzly
bears.
The Fish and Wildlife Service concluded that the extensive
package of mitigation measures supported a finding that the
proposed mine posed “no jeopardy” to the grizzly bears
because “collectively, the measures would reduce, remove or
more than offset the potential adverse effects of the proposed
action.” The mitigation plan was so robust that the Fish and
Wildlife Service concluded it “would in fact improve conditions over the long-term over the existing conditions, ulti-

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mately promoting the recovery of the [local] grizzly bear
population.”3
[6] (4) The proposed mitigation plan was not unreasonably
speculative, and the plan was appropriately relied upon by the
Fish and Wildlife Service. Before approving a proposed project, an agency must have “specific and binding plans,” “solid
guarantees,” and a “clear, definite commitment of resources.”
Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 524 F.3d
917, 935-36 (9th Cir. 2008). The Fish and Wildlife Service’s
mitigation plan fulfills these requirements. If Revett Silver
Company is unable to acquire the necessary mitigation parcels, the company will not be allowed to open the mine.
Revett Silver Company must also establish “a trust fund or
post a bond prior to implementation of the [mine] to insure
full implementation of the mitigation plan.” Moreover, Revett
Silver Company has already purchased approximately 273
acres of mitigation land, demonstrating its commitment of
resources to the mine.
CONCLUSION
For the foregoing reasons, the Fish and Wildlife Service’s
determination that the mine would entail “no adverse modification” to bull trout critical habitat and would result in “no
jeopardy” to grizzly bears was not arbitrary, capricious, or in
violation of the Endangered Species Act. AFFIRMED.

3

For another example where this court upheld a Fish and Wildlife Service’s “no jeopardy” conclusion because of comprehensive mitigation
measures that addressed a potential threat to a grizzly bear habitat, see Selkirk Conservation Alliance v. Forsgren, 336 F.3d 944, 955-57 (9th Cir.
2003).