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Fund for Animals v. Thomas

Citation: 28 ELR 20196
No. 96-5298, 127 F.3d 80/(D.C. Cir., 10/17/1997)

The court holds that the U.S. Forest Service policy of leaving game "baiting" regulation in the National Forest System to the states complies with the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA). The court first holds that the adoption of the new policy is not a major federal action requiring an environmental impact statement under NEPA. By 1995, when the national policy was adopted, baiting remained federally regulated only in Wyoming, and the shift at that time from federal to state regulation had no effect outside Wyoming. As for Wyoming itself, the effect there was minimal, because the substantive requirements of Wyoming's regulations vary only insignificantly from those of the federal special use permit conditions they replaced. Because the new national policy maintained the substantive status quo, it cannot be characterized as a major federal action under NEPA. The court next holds that the Forest Service did not violate its ESA duty to obtain a biological evaluation from the U.S. Fish and Wildlife Service (FWS) before adopting the final policy in 1995. To the extent that there was an ESA consultation obligation, the Forest Service and the FWS fulfilled it by engaging in "informal consultation" pursuant to the joint regulations promulgated by the FWS and the National Marine Fisheries Service.

[Related briefs and pleadings to this litigation are digested at ELR BRIEFS & PLEADS. 66414.]

Counsel for Appellants
Eric R. Glitzenstein
Meyer & Glitzenstein
1601 Connecticut Ave. NW, Ste. 450, Washington DC 20009
(202) 588-5206

Counsel for Appellees
Jeffrey C. Dobbins
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Williams and Ginsburg, JJ.