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Southwest Ctr. for Biological Diversity v. U.S. Forest Serv.

ELR Citation: 27 ELR 20455
Nos. 96-15756, 100 F.3d 1443/(9th Cir., 11/19/1996)

The court holds that the U.S. Forest Service did not violate the 1995 Rescissions Act by failing to prepare a combined environmental assessment (EA) and biological evaluation for a proposed timber sale. The court first holds that the biological assessment and evaluation and the categorical exclusion from the EA obligation that the Forest Service issued meet Rescissions Act demands. The Rescissions Act requires the preparation of a biological evaluation under the Endangered Species Act (ESA), but plaintiff-appellant environmental group failed to establish that the biological assessment and evaluation violates the ESA. Because the Forest Service initially determined that the sale would have no effect on the Mexican spotted owl, it was not required to consult with the U.S. Fish and Wildlife Service under the ESA. The issuance of the categorical exclusion does not violate the National Environmental Policy Act (NEPA), because NEPA and its implementing regulations allow for the issuance of a categorical exclusion. The court defers to the Forest Service's conclusion that a document other than a combined EA and biological assessment, which complies with NEPA and the ESA, may be submitted to satisfy the Rescissions Act. The court then holds that the Forest Service's conclusion in the biological assessment and evaluation of no effect was not arbitrary and capricious. The Forest Service has no obligation to consider views of other agencies in approving salvage timber sales. Because the categorical exclusion relies on this no effect finding, the court rejects the assertion that the exclusion is arbitrary and capricious. The court also holds that the trial court correctly struck extra-record documents submitted by the environmental group.

Counsel for Plaintiff
Geoff Hickcock
Kenna & Associates
1300 Meadow Rd., Durango CO 81301
(970) 382-5902

Counsel for Defendants
Lisa Jones
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before JAMES R. BROWNING, D.W. NELSON, and FERNANDEZ, Circuit Judges.