Jump to Navigation
Jump to Content

Friends of the E. Fork, Inc. v. Thom

Citation: 40 ELR 20063
No. No. C05-0189, (W.D. Wash., 02/11/2010)

A district court granted environmental groups’ motion for summary judgment finding that the NMFS and the FWS (collectively, the Services) acted arbitrarily and capriciously in failing to consider a mining company’s preexisting reclamation obligations as part of their environmental baseline analysis in preparing a biological opinion and an EIS for an incidental take permit (ITP). After completing its earlier mining activities, the company failed to comply with state requirements for reclaiming the affected mining areas. The company proposed to meet its preexisting reclamation obligations as part of the commitments it made to the Services in order to be granted ITPs. The court held that, in establishing the baseline for their analysis, the Services should, at a minimum, consider the state of the land as it should have been if the company had met its state reclamation obligations. These obligations were not “hypothetical” but rather legal requirements binding the company to reclaim the property subject to the original permit. The Services’ biological opinions were therefore set aside for failing to apply the proper environmental baseline, and the matter remanded to the Services for further consideration.