United States District Court, D. Montana, Missoula Division
NATIVE ECOSYSTEMS COUNCIL, ALLIANCE FOR THE WILD ROCKIES, Plaintiffs,
LEANNE MARTEN, Regional Forester, USFS Region One, U.S. FOREST SERVICE, and U.S. FISH & WILDLIFE SERVICE, Defendants.
L. CHRISTENSEN, UNITED STATES DISTRICT CHIEF JUDGE
Native Ecosystems Council and Alliance for the Wild Rockies
argue that the North Hebgen Project violates the Endangered
Species Act ("ESA") and the Administrative
Procedures Act ("APA") because the Forest Service
was required to analyze the Project's effects on
wolverine in a Biological Assessment ("BA") and
receive concurrence from the Fish and Wildlife Service
("FWS") and failed to do so. All parties have
extensively briefed the issues of whether the Forest Service
adequately discharged its consultation obligations through
its analysis of the Project's effects on wolverine in the
in the Project's Environmental Assessment or by
conducting a programmatic BA for the wolverine for which the
Forest Service received FWS concurrence. However, the
threshold issue of whether the Forest Service was required to
prepare a BA when the Project is not a "major
construction activity" is not thoroughly briefed. This
argument was raised by Defendant-Intervenor-and briefly, by
the Forest Service-however, Plaintiffs did not respond until
oral argument. At this juncture, the Court requires more
information in order to decide this issue.
7 of the ESA, from which the consultation and conference
obligation arises, indicates that a B A is required for
"any agency action" where a proposed or listed
species "may be present" in the project area. 16
U.S.C. § 1536(c)(1). The regulations implementing
section 7 explain that the action agency is
"required" to "prepar[e]" a BA for
federal actions that are "major construction
activities." 50 C.F.R. § 402.12(b)(1). On its face,
this describes a smaller subset of federal actions for which
a BA is required.
argument, Plaintiffs argued that the Court was bound by the
broad language in the statute which mandates a BA for
"any agency action," and to the extent the
regulation at 402.12(b)(1) conflicts with the statute, the
Court may disregard it. See, e.g., Natl Family Planning
& Reprod. Health Ass'n Inc. v. Gonzales, 468
F.3d 826, 829 (D.C. Cir. 2006). Nevertheless, recognizing the
Court's duty to interpret provisions of a text in a way
that "renders them compatible, not contradictory,"
Antonin Scalia et al., Reading Law, 180 (explaining
the harmonious-reading canon), Plaintiffs advanced a textual
reading tying the language of the regulation to §
1536(c)(1)'s triggering date. To the extent Plaintiffs
continue to hang their hat on this argument, the Court
requests additional briefing on the subject.
§ 402.12(b)(1) constrains an agency's duty to
prepare a BA under § 1536 is an unresolved question.
Swan View Coal. v. Weber, 783 Fed.Appx. 675, 678 n.1
(9th Cir. 2019) (unpublished) ("It may well be that the
'major construction activities' language is not a
broad limitation on the applicability of the regulation but
an explanation of how the regulation applies to such
activities in particular. If so, then the regulation does not
relieve agencies of the obligation to conduct a biological
assessment for actions other than 'major construction
activities.'"). While the majority of lower courts
that have addressed the issue have concluded that an agency
is only required to prepare a B A where a project is
a "major construction activity", the analysis of
the issue is often perfunctory. See, e.g., Los Padres
Forestwatch v. U.S. Forest Serv., 776 F.Supp.2d 1042,
1045 (N.D. Cal. 2011); New Mexico ex rel Richardson v.
Bureau of Land Mgmt, 459 F.Supp.2d 1102, 1129 (D.N.M.
2006), aff'd in part, vacated in part, rev'd in
part, 565 F.3d 683 (10th Cir. 2009); but see San
Carlos Apache Tribe v. United States, 272 F.Supp.2d 860,
874-75 (D. Ariz. 2003), aff'd, 417 F.3d 1091
(9th Cir. 2005); Hawksbill Sea Turtle v. Fed. Emergency
Mgmt. Agency, 11 F.Supp.2d 529, 544 (D.V.I. 1998). While
the agency's stance is relatively clear, 51 Fed. Reg.
19946, 19948 (1986) ("The biological assessment process
begins when a Federal agency decides that its action is a
major construction activity, as discussed in these
regulations, or it decides that it will voluntarily prepare a
biological assessment.9'), the Court recognizes
Plaintiffs concern that there appears to be a conflict
between the statute and regulation, at least as it pertains
to projects that are not "major construction
the uncertain nature of this question and its importance on
the outcome as it pertains to the wolverine, the Court will
provide each of the parties with an additional opportunity to
weigh in. The parties might consider whether there is a way
to read the statute and regulation in harmony? See Sierra
Club v. U.S. Army Corps of Engineers, 295 F.3d 1209,
1213 (11th Cir. 2002). Whether the agency's
interpretation is entitled to deference? E.g., Hawksbill
Sea Turtle, 11 F.Supp.2d at 546. Or whether the
agency's enactment of 402.12(b)(1) eviscerates the
breadth of the duty imposed under § 1536(c)(1) in
violation of Congress's purpose in enacting the ESA?
Accordingly, IT IS ORDERED that the parties shall submit
additional briefing on the wolverine issue.
opening brief shall be due February 5, 2020.
Defendants and Defendant-Intervenors respective response
briefs shall be due February 26, 2020.
optional reply shall be due March 11, 2020.
Court reserves the right to order an additional hearing on
this limited issue ...