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Environmental Law

: ESA Blawg

Federal courts publish recent opinions on Mexican spotted owls and grizzly bears

By Keith Rizzardi

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In this electronic era, I find it frustrating that Westlaw and Lexis cannot identify these cases sooner; nevertheless, here are two published cases finally uncovered by my preset searches...

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In Precision Pine & Timber v. U.S., 596 F.3d 817 (Fed. Cir. Feb. 19, 2010), a timber buyer sued the United States because the Forest Service suspended 14 timber sales contracts pending its compliance with the Endangered Species Act (ESA). The United States Court of Federal Claims, 50 Fed.Cl. 35, (Damich, J), granted buyer summary judgment, but the United States Court of Appeals largely reversed the decision. As a factual matter, the 1993 listing of the Mexican spotted owl as an endangered species, and the associated implementation of the ESA and its regulations, eventually led to the suspension of Precision Pine's timber contracts to comply with the consultation process and to ensure survival of the species. Legally, Precision Pine alleged breach of contract, including breaches of express warranties and implied duty of good faith and fair dealing, but the appellate court disagreed:

"The valuable benefit Precision Pine bargained for was the right to harvest timber in a certain place, at a certain time. Significantly, however, the contracts expressly qualified that benefit... For our purposes, the relevant qualification is in the provisions that provide for the situation which arose here - the listing of a new species and delays associated with reassessing Forest Service projects. Under the contract terms, Precision Pine 'agreed to interrupt or delay operations under this contract, in whole or in part' to prevent serious environmental degradation or to comply with a court order, such as the injunction... similarly, the contract allowed the Forest Service to modify or cancel the contracts in order to comply with the ESA..."

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Meanwhile, Greater Yellowstone Coalition v. Servheen, 672 F.Supp.2d 1105 (D. Mont. Sept. 21, 2009) is the case that triggered the recent FWS announcement regarding the re-listing of the grizzly bear. See ESA blawg. The ruling contains two noteworthy sections, in which the Court refused to defer to FWS judgment, taking a rigid view of the demands of the ESA, and the failures of FWS. First, in discussing the Conservation Strategy, which included substantial monitoring protocols for bear habitat, the court held that the monitoring requirements and future plans were unenforceable and do not protect the grizzly bear population. ("Promises of future, speculative action are not existing regulatory mechanisms.") This reasoning, however, seems suspect. Not only does it dismissively reject conservation activities by state wildlife entities -- perhaps raising concerns under ESA section 6 -- but it also creates an impossible-to-escape logical loop. Evidently, a species cannot be deemed to recover, and thus delisted, unless rigidly mandatory conservation duties are left in place on the state... which, of course, the delisting of the species was intended to remove in the first place. Second, the decision takes a very hard look at the FWS analysis, and the record, on the issue of whether climate change will impact whitebark pine, an important grizzly bear food source: "The agency has not articulated a rational connection between the best available science and its conclusion that bears will not be affected by declines in white-bark pine because they are omnivorous. While the Final Rule emphasizes that grizzly bears will be able to adapt to the decline of whitebark pines, the record contains scant evidence for this proposition... The science relied on by the Service does not support its conclusion that declines in the availability of whitebark pine will not negatively affect grizzly bears. In fact, much of the cited science directly contradicts the Service's conclusions. While the agency's discretion is broad in its area of expertise, the discretion is not unlimited. The record supports the Service's own statements that the extent of declines in whitebark pine and the grizzlies' response is 'uncertain.' Where the agency's conclusions contradict the science, the conclusions are not reasonable and the Court need not defer to the agency's decision."

Full post as published by ESA Blawg on March 30, 2010 (boomark / email).