District Court Limits Tiering Of Biological Opinions

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...