Judge throws out federal plan for western NC forests based on bats

A federal judge has thrown out a document federal agencies used to support revised management plans for the Nantahala and Pisgah National Forests. The judge ruled that the biological opinion or BiOp failed to account for the potential negative impact on forest bats.

Tuesday’s ruling marked a win for four environmental groups that sued the US Forest Service and US Fish and Wildlife Service in 2024.

“When the Fourth Circuit concludes that a BiOp is arbitrary and capricious, it vacates the BiOp and remands to the agency for further proceedings consistent with the vacatur,” Chief US District Judge Martin Reidinger wrote in a 40-page order Tuesday. “Accordingly, the proper remedy is for the Court to ‘vacate the BiOp in its present form and require [FWS] to address not only the flaws [the Court] identified but also any additional matters that may be raised on remand.’”

“The Court recognizes that vacatur may cause some disruption to ongoing projects in the Forests, ‘but the Endangered Species Act’s directive to federal agencies could not be clearer: “halt and reverse the trend toward species extinction, whatever the cost,”’” Reidinger added. “On remand, the Fish and Wildlife Service should consider this mandate carefully.”

Environmental groups Defenders of Wildlife, MountainTrue, the Sierra Club, and the Center for Biological Diversity filed suit against the federal agencies in April 2024.

The groups challenged the BiOp tied to the federal government’s plans for overseeing the two national forests, which cover more than 1 million acres of public land across 18 western North Carolina counties.

The federal government adopted its first land and resource management plan for the forests in 1987 and amended the plan in 1994. The Forest Service began revising the plan again in 2013.

In January 2022, a draft document indicated that the latest revision “was likely to adversely affect four endangered bat species — the Indiana bat, the gray bat, the northern long-eared bat, and the Virginia big-eared bat (collectively, ‘the bats’),” Reidinger wrote. “The continued existence of the bats is under threat due to adverse habitat modification, climate change, human disturbance, and, most significantly, white nose syndrome, a fungal disease first documented in North Carolina in 2011.”

“For example, northern long-eared bats ‘are predicted to become functionally extinct in the next few decades,’ and the ongoing decline in the Indiana bat population is ‘predicted to continue,’” Reidinger’s order continued. “Cave-dwelling bats, including the gray bat and Virginia-big-eared bat, have already suffered ‘dramatic declines in Western North Carolina.’”

In June 2022, a BiOp “concluded that the Revised Forest Plan was not likely to jeopardize the continued existence of the bats,” Reidinger wrote. Instead, the document indicated that components of the new plan “would directly or indirectly enhance and/or restore” bat habitat.

The environmental groups argued that multiple parts of the BiOp were “arbitrary and capricious.”

Reidinger cited with the groups on five of their eight claims.

The judge panned the BiOp’s description of an environmental baseline within the forests. “Other than the general and unexplained conclusions that bats use the Forests and that the Forests contain suitable habitat for the bats, the environmental baseline offers no assessment of the conditions of the bats that are specific to the action area,” he wrote.

“The BiOp’s environmental baseline evaluation fails to sufficiently describe the conditions in the action area and fails to account for the impacts of any past or present federal, state, or private actions in the action area. Those failures are arbitrary and capricious,” Reidinger added.

The document also failed to account for “cumulative effects” of future state and private activities on the forests. Reidinger determined.

“[T]he BiOp does not attempt to evaluate even the general impacts of the activities it predicts will occur, nor does the BiOp make any projections or provide any analysis of any potential future projects,” he wrote. “As a result, the BiOp’s cumulative effects evaluation amounts to an improper wholesale deferral of the requisite cumulative effects analysis.”

Reidinger questioned how the federal agencies determined that the revised plan created “no jeopardy” for the bats.

“Here, the biological assessment that USFS provided FWS states that preserving suitable habitat in the Forests for the bats is ‘critical’ for the ‘persistence into the future’ of the Virginia big-eared bat, the northern long- eared bat, and the Indiana bat,” he wrote. “Moreover, the Conservation Groups’ claims regarding local population declines of the northern long-eared bat and Indiana bat, habitat preservation for the Virginia big-eared bat, and elements of the bats’ behavior and life cycle concern adverse effects on the bats in the Forests that could ‘result in significant adverse effects throughout the species’ range.’”

“The BiOp, however, does not address how the Agencies reached a no-jeopardy determination in light of the conclusions in the biological assessment and the factual predicates identified by the Conservation Groups,” Reidinger continued. “Because of that shortcoming, and because of antecedent shortcomings in the BiOp’s environmental baseline and cumulative effects evaluations, the Court concludes that the BiOp’s no-jeopardy determination was not ‘reasonable and reasonably explained.’”

“Because the Court has concluded that the BiOp is legally flawed, USFS’s reliance on it is unlawful,” Reidinger wrote.

“Judge throws out federal plan for western NC forests based on bats” was originally published on www.carolinajournal.com.