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Center for Biological Diversity v. U.S. Forest Serv.

ELR Citation: 34 ELR 20004
Nos. No. 02-16481, (9th Cir., 11/18/2003)

The court reverses and remands a district court's approval of a final environmental impact statement (EIS) that failed to discuss and respond to seven scientific studies casting doubt on the U.S. Forest Service's conclusion that northern goshawks are habitat generalists. In response to the Forest Service's publication of its intent to prepare an impact statement, as well as the issuance some months later of a scoping report and supplemental materials, the Forest Service received comments challenging the conclusion that northern goshawks are habitat generalists. The Arizona Game and Fish Department submitted a letter and a paper presenting scientific evidence refuting the Forest Service's conclusion, and the U.S. Fish and Wildlife Service submitted similar comments. The Forest Service responded directly to the two agencies' submissions, citing several scientific studies, and created an interagency team to identify concerns. The draft EIS contained summaries of the comments but did not specifically mention or discuss the scientific opposition. In the final EIS, the agency attached copies of the comments but did not mention or respond to them within the text. The EIS, therefore, was improper under 40 C.F.R. §1502.9(b), which requires agencies to discuss commenters' evidence and opinions that directly challenge the scientific basis upon which the final EIS rests within the EIS itself.

Counsel for Plaintiffs
Michael R. Lozeau
Earthlaw
555 Nathan Abbott Way, Stanford CA 94305
(650) 723-0325

Counsel for Defendant
Ellen J. Durkee
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000