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Ksanka Kupaqa Xa'cin v. United States Fish and Wildlife Service

ELR Citation: 49 ELR 20172
Nos. CV 19-20-M-DWM, (D. Mont., 10/10/2019) (Molloy, J.)

A district court denied summary judgment in a lawsuit concerning potential harms to local trout populations from a proposed copper and silver mine in Montana. Environmental groups and a Native American tribe argued that FWS violated the ESA by using a habitat surrogate to establish the mine's authorized incidental take of bull trout, because the surrogate failed to set an adequate trigger for when an unacceptable level of take was occurring. FWS asserted the groups had not alleged an injury in fact because there would be no take of bull trout until a later phase of the mine was approved and implemented, and thus that the groups lacked standing. The court found that the groups alleged a procedural injury by arguing that the statement must set a standard for determining when the level of anticipated take had been exceeded, rather than arguing for any particular standard. Further, the groups sufficiently alleged that FWS' failure to set a standard posed a reasonably probable threat to their aesthetic, recreational, cultural, and spiritual interests in bull trout near the mine. Plaintiffs also argued that FWS violated the ESA by failing to reinitiate formal consultation on the mine's impact to grizzly bears, but the court found that FWS conceded this argument in a subsequent pleading. It therefore denied the agency's motion for summary judgment.