Forest Service Employees for Environmental Ethics, Plaintiff v United States Forest Service. Country/Territory United States of America Type of court National - lower court Date Jul 27, 2010 Source UNEP, InforMEA Court name United States District Court, District of Montana Seat of court Missoula Judge MOLLOY, D.W. Reference number No. 08-cv-00043-DWM Language English Subject Wild species & ecosystems, Forestry Keyword Protection of habitats Protected plant species Forestry protection measures Protected fish species Protected animal species Hazardous substances Forest management/forest conservation Social forestry/community forestry Forest service/forest officers Protection of species Abstract In 2003, the Forest Service Employees for Environmental Ethics filed a lawsuit challenging the Forest Services use of chemical fire retardantto fight wildfires on Forest Service lands. The court granted summary judgment for plaintiffs on the grounds that federal defendants had failed to comply with NEPA and the ESA. Eventually, the Forest Service issued its Environmental Assessment and Finding of No Significant Impact (FONSI) pursuant to NEPA and the Fish and Wildlife Service and National Marine Fisheries Service issued their biological opinions pursuant to the ESA. In response the Forest Service Employees for Environmental Ethics filed another lawsuit. Both the Fish and Wildlife Service and National Marine Fisheries Service issued programmatic biological opinions that included jeopardy and adverse modification determinations for numerous species. Neither agency issued an incidental take statement to accompany its biological opinion, but both agencies issued a reasonable and prudent alternative (RPA) pursuant to section 7(b)(3)(A) of the ESA. The Court invalidated the RPA issued by the Fish and Wildlife Service because the RPA was based on guidance rather than mandatory restrictions that left ultimate discretion to the action agency and “elevated fire suppression over the protection of jeopardized listed species.” In addition, the court granted summary judgment to plaintiffs because both agencies failed to issue incidental take statements. The court was not persuaded that the Fish and Wildlife Service RPA or subsequent emergency consultations by NMFS would be sufficient to protect the species absent incidental take statements. The court also rejected the Forest Services FONSI “because the jeopardy findings of the ESA agencies constitute significant impacts that are not alleviated by the [RPA].” The court required the agencies to comply with the requirements of the ESA and NEPA by December 31, 2011. Full text COU-157324.pdf