Court decision in Swan View Coalition v. Haaland (D. Montana)
On June 28, the district judge adopted the magistrate judge’s findings that the Forest Service violated the Endangered Species Act because it failed to adequately consider the effects on grizzly bears and bull trout of closed roads and unauthorized use of roads when it adopted its revised forest plan (discussed in depth here). This article has a link to the court order, which remands the Fish and Wildlife Service’s Biological Opinion, but does not disturb the forest plan, or enjoin any projects.
This is the second time the Forest Service has lost this case, and I thought it might be interesting to explore this example of the role the courts have in considering scientific issues related to land management, and whether such judicial review looks different with Chevron deference to agency expertise no longer the law. The scientific question in this case concerns the effects of “closed” roads on grizzly bears and bull trout – more specifically the difference between the effects of roads closed by obliteration and restoration (as required by the prior forest plan) and roads closed by signs and barriers, without removing culverts (as required by the revised forest plan, and referred to as “impassable” roads). There are documented violations of the latter kinds of closures, and the agencies agree that they are less than 100% effective. However, the Fish and Wildlife Service declined to consider the effects of these closed roads or their use on the listed species in its biological opinion.
This court found held that the FWS violated the ESA because the agency “offered an explanation for its decision to exclude impassable roads from (total road density) that runs counter to the evidence before the agency.” With regard to grizzly bears, the agency “failed to address the exclusion of unauthorized motorized use from road density calculations and, to the extent the agency did address this issue, failed to articulate a satisfactory explanation regarding its decision.” Regarding bull trout, the court ruled that FWS violated the ESA because the agency “failed to address its decision to abandon the culvert removal requirement with respect to impassable roads.”
This court largely followed the reasoning in a prior case regarding deference to the agencies (referring to that prior opinion): “The Court explained that, while it would defer to the agencies’ expertise on how to account for unauthorized motorized access going forward, ‘the agencies must actually exercise that expertise for their decision to stand.’ Id. at 1138. In summary, ‘[c]laiming a total inability to ascertain, or even estimate, effects of unauthorized motorized use on OMRD, TMRD, and Core—and, by extension, the effects on grizzly bears—despite the evidence in the record . . . does not suffice.’”
Courts can tell from the administrative record whether an agency actually considered the scientific facts in the record, and the agency will be found arbitrary if it did not. This is an application of the requirements of the Administrative Procedure Act, not an interpretation of a subject matter statute. Such cases wouldn’t have invoked Chevron deference in the past, and so nothing should change.
We might perceive a little wiggle room in the question of a “satisfactory” explanation of how the facts were considered. The court walks through this question on pp. 29-33, where it refers to “logic” and whether the facts in the record support the statements made by the agencies. It concludes that the explanation in this case “runs counter to the evidence before the agency.” This still looks like an APA record review rather than one involving interpretations of law or fact that could have raised questions about Chevron deference. I don’t see evidence that the judge is usurping agency expertise.
Thanks for this coverage.
I wonder whether we could look at the writeup
“With regard to grizzly bears, the agency “failed to address the exclusion of unauthorized motorized use from road density calculations and, to the extent the agency did address this issue, failed to articulate a satisfactory explanation regarding its decision.” Regarding bull trout, the court ruled that FWS violated the ESA because the agency “failed to address its decision to abandon the culvert removal requirement with respect to impassable roads.””
Hmmm. They didn’t have a “satisfactory explanation” and “failed to address the exclusion” enough .. apparently. It seems like a lot of work to have this court case, when I’m sure the FS did have reasons.
They had reasons..
Did they not articulate them at all?
Did they not articulate them as well as the judge would have liked?
Did the judge ultimately disagree with the FS?
If anyone knows this case and can parse through the EIS (although we don’t have access to the admin record), I’d like to see for myself the explanations that the FS did come up with.
Finally, I understand there is a difference between biological reality and the ESA and implementing regs, but ordinary people are to believe that grizzlies (whose populations are increasing by moving into areas with roads and more people) that are moving into backyards in Cody are put off by insufficiently closed roads?
Here is what the court said the record said (hopefully these were the best arguments the Forest Service had).
The Forest Service said that the redetermination of open roads doesn’t matter because the grizzly population is increasing. Because they had made changes in a likely reason for the increase, the Court likened such behavior to “throwing away your umbrella in a rainstorm because you are not getting wet.”
They said the Revised Forest Plan will ultimately “maintain baseline levels of [OMRD], TMRD, and secure core . . . that would support continued recovery.” The court said, “The issue is not a change in TMRD levels, but a change in how TMRD is calculated,” so maintaining levels that would be calculated differently does not explain the reason for changing the calculation or its effects.
The last question involved interpretation of scientific research. The FWS said exclusion of “impassable” roads from TMRD calculations will not negatively affect grizzly bears, but cited research that demonstrated an inverse relationship between road density and habitat selection, even if the roads are closed.
This does require a judge to read about science, but they are smart enough to understand what it says. And maybe either smarter or more honest than the agencies. It is also possible that a judge would be more likely to get more into the weeds and look for flaws when they have a gut feeling about what the outcome should be.