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Cold Mountain v. Garber

ELR Citation: 34 ELR 20055
Nos. No. 03-35474, (9th Cir., 07/14/2004)

The Ninth Circuit affirmed a lower court decision that the U.S. Forest Service's issuance of a permit to operate a bison capture facility in Montana did not violate the ESA or NEPA. The Forest Service, along with the FWS, agreed that the facility might adversely affect certain bald eagle populations. The FWS therefore issued an incidental take statement that set forth certain helicopter hazing restrictions near the eagle nests. An environmental group argued that the Forest Service's failure to enforce the restrictions led to reproductive failure of the eagles. The group, however, failed to show a causal link between any alleged hazing violations and the reproductive failure. Thus, no prohibited take occurred under the ESA. In addition, the court declined to address the group's claim that the Forest Service was required to reinitiate formal consultation with the FWS after the reproductive failure because it was not raised below. Last, the Forest Service properly evaluated the impact of the bison capture facility and solicited public comment before issuing the permit and FONSI.