685 F.2d 678 (D.C. Cir. 1982), 81-1671, Cabinet Mountains Wilderness/Scotchman's Peak Grizzly Bears v. Peterson

Docket Nº:81-1671.
Citation:685 F.2d 678
Party Name:Envtl. CABINET MOUNTAINS WILDERNESS/Scotchman's Peak Grizzly Bears, et al., Appellants v. R. Max PETERSON, U. S. Forest Service, et al.
Case Date:August 13, 1982
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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685 F.2d 678 (D.C. Cir. 1982)


CABINET MOUNTAINS WILDERNESS/Scotchman's Peak Grizzly Bears,

et al., Appellants


R. Max PETERSON, U. S. Forest Service, et al.

No. 81-1671.

United States Court of Appeals, District of Columbia Circuit

August 13, 1982

Argued March 19, 1982.

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Appeal from the United States District Court for the District of Columbia (D.C.Civil Action No. 80-02450).

Howard Irving Fox, Washington, D. C., with whom Karin P. Sheldon, Washington, D. C., was on the brief for appellants, Sierra Club and Defenders of Wildlife. Ronald J. Wilson, Washington, D. C., also entered an appearance for appellants, Sierra Club and Defenders of Wildlife.

Peter C. Wagstaff, Coeur d'Alene, Idaho, for appellants, Western Sanders County Involved Citizens and Cesar Hernandez.

Jerry Jackson, Atty., Dept. of Justice, Washington, D. C., with whom Edward J. Shawaker, Atty., Dept. of Justice, and Robert A. Maynard, Atty., Dept. of Agriculture, Washington, D. C., were on the brief for appellees, Peterson, et al. Donald A. Carr, Atty., Dept. of Justice, Washington, D. C., also entered an appearance for appellees, Peterson, et al.

R. Brooke Jackson, Washington, D. C., with whom Susan L. Smith, Allston, Mass., was on the brief for appellee, ASARCO, Inc.

Before BORK, Circuit Judge, ROBB, Senior Circuit Judge, and JAMES F. GORDON, [*] United States District Judge for the Western District of Kentucky.

Opinion for the Court filed by Senior Circuit Judge ROBB.

ROBB, Senior Circuit Judge:

In this action in the District Court the plaintiffs challenged the decision of the United States Forest Service to approve a plan of operations for exploratory mineral drilling in the Cabinet Mountains Wilderness Area in Northwestern Montana. 1 The plaintiffs alleged the Forest Service action violated the Endangered Species Act (ESA), 16 U.S.C. §§ 1531 et seq. (1976 & Supp. IV 1980), and the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321 et seq. (1976). ASARCO, Inc. 2 intervened as a defendant to protect its interest as the drilling permittee. On cross-motions for summary judgment the District Court upheld the Forest Service's decision. Cabinet Mountains Wilderness v. Peterson, 510 F.Supp. 1186 (D.D.C.1981). The plaintiffs appeal. We affirm the judgment of the District Court.

The Cabinet Mountains Wilderness Area consists of approximately 94,272 acres and is part of the Cabinet-Yaak ecosystem, one of only six ecosystems in the continental United States that supports populations of grizzly bears. The bears are listed as a threatened species under the ESA. See 50 C.F.R. § 17.11(h) (1981). Although it is estimated that only about a dozen grizzly bears may inhabit a portion of the Cabinet Mountains area where drilling will take place, the area has been recognized as having a high potential for grizzly bear management.

ASARCO holds a claim block consisting of 149 unpatented mining claims totalling 2,980 acres, most of them located in the Cabinet Mountains Wilderness Area. In 1979 ASARCO submitted a proposal to conduct preliminary exploratory drilling. The Forest Service began an extensive review of the proposal, including an environmental assessment, biological evaluation, and biological opinion. The Forest Service approved the proposal and ASARCO drilled four holes between July and November of that year. On February 4, 1980 ASARCO submitted a proposal for the continuation of the 1979 exploration program to be conducted during 1980-1983. For 1980, 36 drill

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holes on 22 sites in the Chicago Peak area of the Wilderness were proposed with a similar level of activity expected to take place in each of the three succeeding years. The purpose of the drilling program is to assess the extent of copper and silver deposits in the area. Each drill site is limited to an area of 20 feet by 20 feet. Over a four-year period these sites will occupy a combined area of about one-half acre. Pursuant to 36 C.F.R. § 252.4(f) (1981), the Forest Service prepared an environmental assessment of the proposal, referred to as the Chicago Peak Mining Exploration Project. Copies of the assessment were sent to various individuals for comment and five public meetings were held. In accordance with section 7(c) of the ESA, 16 U.S.C. § 1536(c) (Supp. IV 1980), the Forest Service prepared a biological evaluation, assessing potential effects of the proposal on the grizzly bears. It concluded that the cumulative impact of the drilling together with other activities in the Cabinet Mountains Wilderness Area, such as timber sales, could adversely affect the bears. Therefore fourteen specific recommendations were made which were designed to reduce these potential effects to a minimum. To offset the adverse effects of the drilling activities the evaluation suggested the adoption of compensatory measures which would positively influence grizzly habitat.

Pursuant to section 7(a)(2) of the ESA, 16 U.S.C. § 1536(a)(2) (Supp. IV 1980), the Forest Service initiated formal consultation with the Fish and Wildlife Service of the Department of Interior (FWS). In compliance with section 7(b) of the ESA, 16 U.S.C. § 1536(b) (Supp. IV 1980) the FWS prepared a biological opinion detailing the effects of the ASARCO Chicago Peak project on the grizzlies and suggesting alternatives. This biological opinion was submitted to the Forest Service on June 19, 1980 and stated that the ASARCO proposal was "likely to jeopardize the continued existence of the grizzly bear." The principal factors underlying this conclusion were:

1. The current precarious status of the Cabinet Mountains grizzly bear population.

2. Impacts that exploration may have upon denning activities and hence reproductive success.

3. The level of current and proposed projects that will be occurring simultaneously with the exploration program, further removing the amount of habitat available to the grizzly.

(J.A. 175) The FWS outlined an alternative course of action which would avoid jeopardizing the continued existence of the Cabinet Mountains grizzly bear population. According to the FWS, the alternative was designed to "completely compensate in specific ways the cumulative adverse effects of the proposed project and other ongoing and proposed Forest Service activities." (J.A. 178) Three measures were described: (1) limiting ASARCO's proposed annual period of operation so that no drilling or helicopter flights occur after September 30 of each operating season. This was a month earlier than ASARCO proposed; (2) rescheduling or eliminating certain timber sales; and (3) ordering seasonal or permanent road closures so as to provide greater security for the grizzlies' habitat. (J.A. 178)

In May 1980 the Forest Service completed a final environmental assessment which incorporated the recommendations made by the FWS in its biological opinion. In addition the Forest Service recommended measures designed to mitigate the adverse effects on the Wilderness Area with particular regard to the grizzly bears, including a prohibition on overnight camping by ASARCO personnel except in emergency situations, daily and seasonal restrictions on helicopter flights to avoid disturbing the grizzlies during important denning and feeding periods, restrictions on helicopter usage to specified flight corridors, reclamation of drilling sites, seasonal restrictions on drilling activity in specified areas of the Wilderness, and monitoring of ASARCO's operations by Forest Service personnel. The plan devised by the FWS was expressly adopted by the Forest Service.

On June 17, 1980 the Kootenai National Forest Supervisor, William E. Morden, issued

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a "Decision Notice and Finding of No Significant Impact" which approved the ASARCO plan subject to the modifications contained in the environmental assessment and the complete compensation plan described in the FWS's biological opinion. Morden concluded that the impacts of the proposed activity had been adequately assessed and appropriate measures initiated to ensure that "(t)he continued existence of the grizzly bear is not threatened nor is its critical habitat adversely modified." (J.A. 47) Because the environmental assessment found there would be no significant impacts from the proposal as modified, Morden stated that an environmental impact statement (EIS) was unnecessary. Approval was expressly limited to the proposed exploratory drilling activities; further activities such as developmental exploration or mineral extraction would require a comprehensive examination of environmental effects.

After an unsuccessful administrative appeal of the decision plaintiffs began this action in the District Court. The plaintiffs averred that the Forest Service had violated its responsibilities under section 7 of the ESA, which provides, "(e)ach Federal agency shall ... insure that any action authorized, funded, or carried out by such agency is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species ...." 16 U.S.C. § 1536(a)(2) (Supp. IV 1980). The plaintiffs also argued that the agency's failure to prepare an EIS violated NEPA. On April 15, 1981 the district judge denied the plaintiffs' motion for summary judgment and granted the summary judgment motions of the Forest Service and ASARCO. The court first concluded that agency actions under the ESA are subject to the arbitrary and capricious standard of review, rather than de novo review, 510 F.Supp. at 1189. It then held that the Forest Service had met its burden under both NEPA and the ESA by showing that its decision was not arbitrary or capricious. Id. The court emphasized that the Forest Service had imposed mitigation measures and taken affirmative steps to ensure that the grizzly bears would be protected. Id. at 1190. Also the court noted that...

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