District court limits tiering of biological opinions

On December 5, 2014, a federal district court held that the U.S. Fish and Wildlife Service (FWS) failed to comply with the Endangered Species Act (ESA) when it relied entirely on existing programmatic biological opinions to satisfy its formal consultation obligations. The court’s decision is likely to impact the manner in which FWS cross-references or “tiers to” existing biological opinions in evaluating the impacts of a site-specific project on listed species. In Native Ecosystems Council v. Krueger, the plaintiffs challenged a decision by the U.S. Forest Service authorizing commercial logging on 1,750 acres of the Gallatin National Forest. The plaintiffs brought claims under the ESA, alleging that the FWS improperly relied on previous biological opinions for the grizzly bear and the Canada lynx during the formal consultation process, instead of preparing project-specific biological opinions. The court in Native Ecosystems Council acknowledged that tiering was permissible in some circumstances, but focused its decision on whether based on the facts before it the ESA required a second biological opinion, or whether the two previous programmatic biological opinions adequately analyzed the logging project’s potential impacts on grizzly bears and Canada lynx. Op. at 4-5. The court determined a second biological opinion was necessary because the previous opinions did not address all of the potential impacts to the species identified by the Forest Service as part of the site-specific logging project. Op. at 5-13. The court acknowledged that the FWS did not need to redo the previous analysis to the extent that previous analysis was relevant to the logging project, but that it was not excused from evaluating new potential impacts of the project beyond the scope of the previous analysis, even if the FWS believed them to be insignificant...more