Alliance v. U.S. Fish & Wildlife Serv., No. 10–35596.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtPREGERSON
Citation73 ERC 1673,663 F.3d 439,11 Cal. Daily Op. Serv. 13915,2011 Daily Journal D.A.R. 16613
PartiesROCK 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.
Docket NumberNo. 10–35596.
Decision Date16 November 2011

11 Cal. Daily Op. Serv. 13,915
2011 Daily Journal D.A.R. 16,613
663 F.3d 439
73 ERC 1673

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.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 14, 2011.Filed Nov. 16, 2011.


[663 F.3d 441]

Douglas L. Honnold; Timothy J. Preso (argued); Todd D. True; Stephen D. Mashuda, Earthjustice, Bozeman, MT, for the plaintiffs-appellants.

Ignacio S. Moreno, Assistant Attorney General; Andrew C. Mergen; Robert H. Oakley (argued), Washington, D.C., for the defendant-appellee.

Alan L. Joscelyn and KD Feeback, Gough, Shanahan, Johnson & Waterman, PPLP, Helena, MT; Robert Tuchman (argued) and Charlotte L. Neitzel, Holme, Roberts & Owen LLP, Denver, CO, for the intervenor-defendant-appellee.Appeal from the United States District Court for the District of Montana, Donald W. Molloy, District Judge, Presiding. D.C. No. 9:08–cv–00028–DWM.Before: HARRY PREGERSON, KIM McLANE WARDLAW, and MILAN D. SMITH, JR., Circuit Judges.
OPINION
PREGERSON, Circuit Judge:

Plaintiff–Appellant Rock Creek Alliance appeals the district court's grant of summary judgment in favor of Defendant–Appellee the U.S. Fish and Wildlife Service and Intervenor–Defendant–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

[663 F.3d 442]

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 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) 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...

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29 practice notes
  • Chilkat Indian Vill. of Klukwan v. Bureau of Land Mgmt., Case No. 3:17-cv-00253-TMB
    • United States
    • United States District Courts. 9th Circuit. District of Alaska
    • March 15, 2019
    ...v. U.S. Forest Serv. , 703 F. Supp. 2d 1152, 1173 (D. Mont. 2010), aff'd in part sub nom. Rock Creek All. v. U.S. Fish & Wildlife Serv. , 663 F.3d 439 (9th Cir. 2011) (citing Kleppe v. Sierra Club , 427 U.S. 390, 413–14, 96 S.Ct. 2718, 49 L.Ed.2d 576, (1976) ).207 Ocean Advocates , 361 F.3d......
  • Town of Superior v. U.S. Fish & Wildlife Serv., Civil Action No. 11-cv-03294-PAB
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    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • December 21, 2012
    ...effects or the "critical habitat" elements in the local environment. Id.; see also Rock Creek Alliance v. U.S. Fish & Wildlife Serv., 663 F.3d 439, 442 (9th Cir. 2011) (identifying local elements such as water temperature, substrate composition, migratory corridors, channel stability, and c......
  • Native Vill. of Chickaloon v. Nat'l Marine Fisheries Serv., Case No. 3:12-cv-00102-SLG
    • United States
    • United States District Courts. 9th Circuit. District of Alaska
    • May 29, 2013
    ...251. Docket 51 at 33 (quoting Natl. Wildlife Fedn. v. NMFS, 524 F.3d at 936). 252. Rock Creek Alliance v. U.S. Fish and Wildlife Serv., 663 F.3d 439, 443 (9th Cir. 2011); cf. Natl. Wildlife Fedn. v. NMFS, 524 F.3d at 933 (While an agency will not be overturned for failing to address recover......
  • Friends of the River v. Nat'l Marine Fisheries Serv., No. 2:16–cv–00818–JAM–EFB
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • February 21, 2018
    ...to support a finding that an agency action poses no jeopardy to the Listed Species. See Rock Creek All. v. U.S. Fish & Wildlife Serv., 663 F.3d 439, 444 (9th Cir. 2011). "[A] sincere general commitment" to future mitigation, however, may not be included as part of a proposed 293 F.Supp.3d 1......
  • Request a trial to view additional results
29 cases
  • Chilkat Indian Vill. of Klukwan v. Bureau of Land Mgmt., Case No. 3:17-cv-00253-TMB
    • United States
    • United States District Courts. 9th Circuit. District of Alaska
    • March 15, 2019
    ...v. U.S. Forest Serv. , 703 F. Supp. 2d 1152, 1173 (D. Mont. 2010), aff'd in part sub nom. Rock Creek All. v. U.S. Fish & Wildlife Serv. , 663 F.3d 439 (9th Cir. 2011) (citing Kleppe v. Sierra Club , 427 U.S. 390, 413–14, 96 S.Ct. 2718, 49 L.Ed.2d 576, (1976) ).207 Ocean Advocates , 361 F.3d......
  • Town of Superior v. U.S. Fish & Wildlife Serv., Civil Action No. 11-cv-03294-PAB
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • December 21, 2012
    ...effects or the "critical habitat" elements in the local environment. Id.; see also Rock Creek Alliance v. U.S. Fish & Wildlife Serv., 663 F.3d 439, 442 (9th Cir. 2011) (identifying local elements such as water temperature, substrate composition, migratory corridors, channel stability, and c......
  • Native Vill. of Chickaloon v. Nat'l Marine Fisheries Serv., Case No. 3:12-cv-00102-SLG
    • United States
    • United States District Courts. 9th Circuit. District of Alaska
    • May 29, 2013
    ...251. Docket 51 at 33 (quoting Natl. Wildlife Fedn. v. NMFS, 524 F.3d at 936). 252. Rock Creek Alliance v. U.S. Fish and Wildlife Serv., 663 F.3d 439, 443 (9th Cir. 2011); cf. Natl. Wildlife Fedn. v. NMFS, 524 F.3d at 933 (While an agency will not be overturned for failing to address recover......
  • Friends of the River v. Nat'l Marine Fisheries Serv., No. 2:16–cv–00818–JAM–EFB
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • February 21, 2018
    ...to support a finding that an agency action poses no jeopardy to the Listed Species. See Rock Creek All. v. U.S. Fish & Wildlife Serv., 663 F.3d 439, 444 (9th Cir. 2011). "[A] sincere general commitment" to future mitigation, however, may not be included as part of a proposed 293 F.Supp.3d 1......
  • Request a trial to view additional results

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