On December 5, 2014, a federal district court held that the U.S. Fish and Wildlife Service (FWS) failed to comply with the Endangered Species Act (ESA) when it relied entirely on existing programmatic biological opinions to satisfy its formal consultation obligations. The court’s decision is likely to impact the manner in which FWS cross-references or “tiers to” existing biological opinions in evaluating the impacts of a site-specific project on listed species.
In Native Ecosystems Council v. Krueger, the plaintiffs challenged a decision by the U.S. Forest Service authorizing commercial logging on 1,750 acres of the Gallatin National Forest. The plaintiffs brought claims under the ESA, alleging that the FWS improperly relied on previous biological opinions for the grizzly bear and the Canada lynx during the formal consultation process, instead of preparing project-specific biological opinions.
The Forest Service initiated formal consultation with the FWS as required by the ESA after determining that the logging project was likely to adversely affect both grizzly bears and Canada lynx. This obligated the FWS to issue a biological opinion analyzing whether the logging project was likely to jeopardize either species. 50 C.F.R. § 402.14(g)-(h). Rather than draft a new biological opinion, the FWS issued a confirmation letter stating that the impacts to the grizzly bear had been fully analyzed in a 2006 programmatic biological opinion and the impacts to the Canada lynx had been fully analyzed in a 2007 programmatic biological opinion. See Op. at 3. The FWS concluded that it could “tier” to the existing biological opinions, thereby eliminating the need to prepare a new one. Op. at 4.
The tiering process is frequently used by agencies under statutes such as the ESA and National Environmental Policy Act (NEPA) to eliminate needlessly reduplicating analysis that an agency has performed previously as part of a programmatic review or similar action. Tiering effectively streamlines the environmental review process, which reduces the time required for project review and conserves agency resources. While NEPA regulations expressly permit tiering, 40 C.F.R. § 1508.28, the ESA regulations are silent on the topic. The FWS Endangered Species Consultation Handbook, however, does encourage streamlined procedures to shorten the time frame for the consultation process by using methods such as tiering. See Handbook at xxii. Additionally, courts have recognized tiering as an appropriate exercise of agency discretion in the ESA context. See, e.g., Gifford Pinchot Task Force v. United States Fish & Wildlife Service, 378 F.3d 1059 (9th Cir. 2004).
The court in Native Ecosystems Council acknowledged that tiering was permissible in some circumstances, but focused its decision on whether based on the facts before it the ESA required a second biological opinion, or whether the two previous programmatic biological opinions adequately analyzed the logging project’s potential impacts on grizzly bears and Canada lynx. Op. at 4-5. The court determined a second biological opinion was necessary because the previous opinions did not address all of the potential impacts to the species identified by the Forest Service as part of the site-specific logging project. Op. at 5-13. The court acknowledged that the FWS did not need to redo the previous analysis to the extent that previous analysis was relevant to the logging project, but that it was not excused from evaluating new potential impacts of the project beyond the scope of the previous analysis, even if the FWS believed them to be insignificant.
The court’s opinion provides additional guidance on the use of tiering under the ESA, which is important considering that currently there are no regulations addressing when tiering is appropriate under that Act. The Native Ecosystems Council decision suggests that FWS must issue a second-tier biological opinion when it relies on a programmatic biological opinion in order to evaluate the specific impacts of a site-specific action to make a “no jeopardy” determination. Though the court did not close the door on the FWS’s use of a confirmation letter to satisfy its formal consultation obligations, the court’s holding would limit such an approach to situations where a site-specific project presents no new impacts to a listed species beyond those analyzed in a programmatic biological opinion.