Decision-making triggers, adaptive management, and natural resources law and planning

Natural Resources Journal

Volumn 52, Issue 2, 2012, Pages 443-521

  Schultz, Courtney ^a   Nie, Martin ^b  

^a UNIVERSITY OF MONTANA   (United States)

^b Warner College of Natural Resources ^*  (United States)

Author keywords

[No Author keywords available]

Indexed keywords

ADAPTIVE MANAGEMENT; DECISION MAKING; ENVIRONMENTAL LEGISLATION; FISHERY MANAGEMENT; IMPLEMENTATION PROCESS; NATURAL RESOURCE; PLANNING LEGISLATION; THRESHOLD; WILDLIFE MANAGEMENT;

EID: 84868639597     PISSN: 00280739     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (268)

1. C.S. HOLLING, ADAPTIVE ENVIRONMENTAL ASSESSMENT & MANAGEMENT (1978).
2. U.S. DEPT. OF INTERIOR, ADAPTIVE MANAGEMENT: THE U.S. DEPARTMENT OF THE INTERIOR TECHNICAL GUIDE V (2009) [hereinafter INTERIOR TECHNICAL GUIDE]; see also NAT'L RESEARCH COUNCIL, ADAPTIVE MANAGEMENT FOR WATER RESOURCES PLANNING (2004).
3. Charles E. Lindblom, The Science of "Muddling Through", 19 PUB. ADMIN. REV. 79 (1959).
4. INTERIOR TECHNICAL GUIDE, supra note 2, at 1.
5. THE NEPA TASK FORCE, REPORT TO THE COUNCIL ON ENVIRONMENTAL QUALITY: MODERNIZING NEPA IMPLEMENTATION ch. 4 (2003).
6. J.B. Ruhl & Robert L. Fischman, Adaptive Management in the Courts, 95 MINN. L. REV. 424, 426 (2010).
7. INTERIOR TECHNICAL GUIDE, supra note 2, at 11.
8. C.J. Walters, Challenges in Adaptive Management of Riparian and Coastal Ecosystems, 1 CONSERVATION ECOLOGY 1 (1997).
9. Cameron L. Aldridge et al., Adaptive Management of Prairie Grouse: How Do We Get There? 32 WILDLIFE SOC'Y BULL. 92 (2004).
10. Martin Nie, THE GOVERNANCE OF WESTERN PUBLIC LANDS: MAPPING ITS PRESENT AND FUTURE (2008).
11. The 2008 regulations are basically the same as the 2005 regulations, though the 2008 iteration went through the NEPA process, as ordered by a District Court whom found the 2005 planning regulations in violation of the APA, NEPA, and ESA. See Citizens for Better Forestry v. USDA, 481 F. Supp. 2d 1059 (N.D. Cal. 2007). Compare National Forest System Land Management Planning, 73 Fed. Reg. 21,468 (Apr. 21, 2008) (codified at 36 C.F.R. pt. 219), with National Forest System Land Management Planning, 70 Fed. Reg. 1023 (Jan. 5, 2005) (codified at 36 C.F.R. pt. 219).
12. 70 Fed. Reg. 1023, 1024.
13. Deann Zwight, Smokey and The EMS, 21 THE ENVTL. FORUM 28 (2004).
14. Discussing the need for a more adaptive forest planning process.
15. Emphasized throughout the rule, and in subsequent forest plans using it, is that the rule and plans 'will not contain final decisions that approve projects or activities except under extraordinary circumstances.' 70 Fed. Reg. 1023, 1024.
16. In its stead the USFS put forth a much less prescriptive 'ecosystem approach' to diversity.
17. Complaint for Declaratory and Injunctive Relief, Defenders of Wildlife et al. v. Schafer, No. C08-02326 (N.D. Cal. 2008).
18. Alyson Flournoy, Robert L. Glicksman & Margaret Clune, Regulations in Name Only: How the Bush Administration's National Forest Planning Rule Frees the Forest Service from Mandatory Standards and Public Accountability (Wash. D.C.: Center for Progressive Reform, White Paper, 2005).
19. Nathaniel S.W. Lawrence, A Forest of Objections: The Effort to Drop NEPA Review for National Forest Management Act Plans, 39 ENVTL. L. REP. 10651 (2009).
20. SOC'Y FOR CONSERVATION BIOLOGY, COMMENTS ON PROPOSED CHANGES TO THE NATIONAL FOREST SYSTEM LAND AND RESOURCES MANAGEMENT PLANNING RULE (2005); WILDLAW, REVIEW OF THE NEW NFMA PLANNING REGULATIONS (2005) (on file with authors).
21. Citizens for Better Forestry v. USDA, 481 F. Supp. 2d 1059 (N.D. Cal. 2007).
22. Notice of Intent to prepare an EIS, 74 Fed. Reg. 67,165 (Dec. 18, 2009) (asking how the USFS's new planning rule can be more adaptive and address uncertainty).
23. Pub. L. No. 88-577, 78 Stat. 890 (1964); 16 U.S.C. §§ 1131-36 (2006).
24. Martin Nie, Place-Based National Forest Legislation and Agreements: Common Characteristics and Policy Recommendations, 41 ENVTL. L. REP. 10229 (2011).
25. General Mining Law of 1872, 30 U.S.C. §§ 21-54 (2006) (creating a form of property rights after the discovery of a valuable mineral deposit); Mineral Leasing Act of 1920, 30 U.S.C. §§ 181-287 (2006).
26. National Park Service Concessions Management Act of 1998, 16 U.S.C. §§ 5951-83 (2006).
27. The Federal Land Policy Management Act (FLPMA) provides various protections to ranchers when grazing permits are cancelled, including two year prior notification and reasonable compensation for adjusted values. See 43 U.S.C. 1752(g) (2006). Certainty has also been central in the debate over grazing preferences and its relationship to base property and a specified quantity of forage. Current regulations define preference as 'the total number of animal unit months on public lands apportioned and attached to base property owned and controlled by a permittee, lessee, or an applicant for a permit or lease...[g]razing preference holders have a superior or priority position against others for the purpose of receiving a grazing permit or lease.' 43 C.F.R. § 4100.0-5 (2010).
28. J.B. Ruhl, Taking Adaptive Management Seriously, 52 U. KAN. L. REV. 1249, 1274 (2004).
29. Noting that since 1999 the USFWS' handbook has promoted the use of adaptive management in HCPs.
30. George F. Wilhere, Adaptive Management in Habitat Conservation Plans, 16 CONSERVATION BIOLOGY 20 (2002).
31. Alejandro E. Camacho, Can Regulation Evolve? Lessons From a Study in Maladaptive Management, 55 UCLA L. REV. 293 (2007).
32. Showing how monitoring and adaptation is mostly missing from the 'ultimately defective' HCP program.
33. 36 C.F.R. § 220.3 (2010). The USFS definition is essentially the same as that used by the BLM (43 C.F.R. § 46.30 (2010)) and NPS (516 Dept. Manual § 4.16; NPS Management Policies 156 (2006)). As discussed in Part III, the USFWS and NOAA Fisheries provide a more specific definition as applied to habitat conservation planning: For the purposes of the HCP program, we are defining adaptive management as a method for examining alternative strategies for meeting measurable biological goals and objectives, and then, if necessary, adjusting future conservation management actions according to what is learned.
34. The Services are incorporating a broad perspective of adaptive management, with the key components that make an adaptive process in HCPs meaningful. These components include careful planning through identification of uncertainty, incorporating a range of alternatives, implementing a sufficient monitoring program to determine success of the alternatives, and feedback loop from the results of the monitoring program that allows for change in the management strategies. Notice of Availability of a Final addendum to the Handbook for habitat Conservation Planning and Incidental Take Permitting Process, 65 Fed. Reg. 35,242, 35,245 (June 1, 2000).
35. B. Ruhl, Adaptive Management for Natural Resources-Inevitable, Impossible, or Both? 54 ROCKY MTN. MIN. L. INST. 11-12 2008).
36. Ronald Brunner, et al., ADAPTIVE GOVERNANCE: INTEGRATING SCIENCE, POLICY, AND DECISION MAKING (2005).
37. Bradley C. Karkkainen, Collaborative Ecosystem Governance: Scale, Complexity, and Dynamism, 21 VA. ENVTL. L.J. 89 (2002).
38. Annecoos Wiersema, A Train Without Tracks: Rethinking the Place of Law and Goals in Environmental and Natural Resources Law, 38 ENVTL. L. 1239 (2008).
39. Providing a thorough review and critique of the 'new governance' literature.
40. Holly Doremus, Adaptive Management, the Endangered Species Act, and the Institutional Challenges of 'New Age' Environmental Protection, 41 WASHBURN L.J. 50, 52 (2001).
41. Pac. Coast Fed'n of Fishermen's Ass'ns v. Gutierrez, 606 F. Supp. 2d. 1122 (E.D. Cal. 2008).
42. 16 U.S.C. §§ 1531-33 (2006).
43. The writing of a supplemental EIS is triggered when the 'agency makes substantial changes in the proposed action that are relevant to environmental concerns; or there are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.' 40 C.F.R. § 1502.9(c) (2010). See infra notes 262-273 and accompanying text.
44. Barbara L. Taylor et al., Incorporating Uncertainty into Management Models for Marine Mammals, 14 CONSERVATION BIOLOGY 1243, 1244 (2000).
45. Peter Groffman, et al., Ecological Thresholds: The Key to Successful Environmental Management or an Important Concept with No Practical Application, 9 ECOSYSTEMS 1, 1 (2006).
46. Emery Roe & Michel Van Eeten, Threshold-Based Resource Management: A Framework for Comprehensive Ecosystem Management, 27 ENVTL. MGMT. 195 (2001).
47. Endangered Species Act, 16 U.S.C. §§ 1531-33 (2006); National Forest Management Act, 47 Fed. Reg. 43,026, 43,048 (Sept. 30, 1982) (codified at 36 C.F.R. §219.19 (1983-2000)) (providing a viability standard).
48. Robert L. Fischman & Jeffrey B. Hyman, The Legal Challenge of Protecting Animal Migrations as Phenomena of Abundance, 28 VA. ENVTL. L.J. 173 (2010).
49. Providing a more detailed discussion of various thresholds in environmental law, and how they can be used an improved upon to conserve animal migrations.
50. Malcolm L. Hunter, et al., Thresholds and the Mismatch between Environmental Laws and Ecosystems, 23 CONSERVATION BIOLOGY 1053 (2009).
51. Ruhl & Fischman, supra note 7.
52. Infra notes 54-69 and accompanying text.
53. Infra notes 70-80 and accompanying text.
54. Infra notes 89-99 and accompanying text.
55. Infra notes 100-109 and accompanying text.
56. Ruhl & Fischman, supra note 7.
57. California ex rel. Lockyer v. USDA, No. 2:05-CV-0211-MCE-GGH, 2008 WL 3863479 (E.D. Cal. Sept. 3, 2008).
58. Ruhl & Fischman, supra note 7, at 456-461.
59. 16 U.S.C. § 1536(a)(2) (2006); 36 C.F.R. § 219.19 (2010).
60. Ruhl & Fischman, supra note 7, at 471.
61. Biological Diversity v. Rumsfeld, 198 F. Supp. 2d. 1139 (D. Az. 2002).
62. Natural Res. Council v. Kempthorne, 506 F. Supp. 2d. 322 (E.D. Cal. 2007).
63. Pac. Coast Fed'n of Fishermen's Ass'ns v. Gutierrez, 606 F. Supp. 2d. 1122 (E.D. Cal. 2008).
64. Greater Yellowstone Coalition v. Servheen, 672 F. Supp. 2d 1105 (D. Mont. 2009).
65. Removing the Yellowstone Distinct Population Segment of Grizzly Bears From the Federal List of Endangered and Threatened Wildlife, 72 Fed. Reg. 14,866 (Mar. 29, 2007) (codified at 50 C.F.R. pt. 17).
66. 16 U.S.C. § 1533(a)(1) (2006); 50 C.F.R. § 424.11(d) (2010).
67. Designating the Greater Yellowstone Ecosystem Population of Grizzly Bears as a Distinct Population Segment; Removing the Yellowstone Distinct Population Segment of Grizzly Bears From the Federal List of Endangered and Threatened Wildlife, 70 Fed. Reg. 69,854, 69,861 (Nov. 17, 2005) (codified at 50 C.F.R. pt. 17).
68. Greater Yellowstone Coalition, 672 F. Supp. 2d at 1118.
69. U.S. FOREST SERV., FOREST PLAN AMENDMENT FOR GRIZZLY BEAR HABITAT CONSERVATION FOR THE GREATER YELLOWSTONE AREA NATIONAL FORESTS: RECORD OF DECISION A-2 (2006).
70. Greater Yellowstone Coalition, 672 F. Supp. 2d at 1117 ('[w]hen Forest Plans contain standards, the standards are 'mandatory requirements,' in contrast to guidelines, 'which are discretionary") (citing Miller v. U.S., 163 F.3d 591, 594 (9th Cir. 1998)).
71. Ruhl & Fischman, supra note 7, at 462.
72. Greater Yellowstone Coalition v. Kempthorne, 577 F. Supp. 2d 183, 187 (D.D.C. 2008).
73. Klamath Siskiyou Wildlands Ctr. v. Boody, 468 F.3d 549 (9th Cir. 2006).
74. USDA FOREST SERV. AND USDI BUREAU OF LAND MGMT., RECORD OF DECISION FOR AMENDMENTS TO FOREST SERVICE AND BUREAU OF LAND MANAGEMENT PLANNING DOCUMENTS WITHIN THE RANGE OF THE NORTHERN SPOTTED OWL (1994) [hereinafter NWFP ROD].
75. USDA FOREST SERV. AND USDI BUREAU OF LAND MGMT., FINAL ENVIRONMENTAL IMPACT STATEMENT FOR AMENDMENT TO THE SURVEY AND MANAGE, PROTECTION BUFFER, AND OTHER MITIGATION MEASURES STANDARDS AND GUIDELINES (2000). USDA FOREST SERV. AND USDI BUREAU OF LAND MGMT., RECORD OF DECISION AND STANDARDS AND GUIDELINES FOR AMENDMENTS TO THE SURVEY AND MANAGE, PROTECTION BUFFER, AND OTHER MITIGATION MEASURES STANDARDS AND GUIDELINES (2001).
76. USDA FOREST SERV. AND USDI BUREAU OF LAND MGMT., supra note 91, at 392-93.
77. Klamath Siskiyou Wildlands Ctr, 468 F.3d at 553.
78. The court explained: BLM is partly correct: the 2001 ROD contemplated that moving a species from one survey strategy to another or dropping Survey and Manage protection for any species whose status is determined to be more secure than originally projected could occur under the plan. However, merely because the 2001 ROD contemplated this type of change, it does not necessarily follow that all contemplated changes fall under the narrow definition of plan maintenance in § 1610.5-4. If that were the law, BLM could circumvent the mandates of § 1610.5-5 (i.e., requiring environmental assessments and impact statements, public disclosure, etc.) by merely designing a management plan that 'contemplates' a wide swath of future change.
79. Klamath Siskiyou Wildlands Ctr., 468 F.3d 549; Or. Natural Res. Council Action v. U.S. Forest Serv., 59 F. Supp. 2d 1085 (W.D. Wash. 1999); Nw. Ecosystem Alliance v. Rey, 380 F. Supp. 2d 1175 (W.D. Wash. 2005).
80. Or. Natural Res. Council Action, 59 F. Supp. 2d 1085.
81. Klamath Siskiyou Wildlands Ctr., 468 F.3d 549 (9th Cir. 200).
82. Ruhl & Fischman, supra note 7, at 454-455.
83. In re Operation of the Mo. River Sys. Litig., 516 F.3d 688, 695 (8th Cir. 2008).
84. Mountaineers v. U.S. Forest Serv., 445 F. Supp. 2d 1235 (W.D. Wash 2006).
85. N. Cascades Conservation Council v. U.S. Forest Serv., 98 F. Supp. 2d 1193 (W.D. Wash. 1999).
86. Mountaineers, 445 F. Supp. 2d at 1250.
87. Neighbors of Cuddy Mountain v. U.S. Forest Serv., 137 F.3d 1372 (9th Cir. 1998).
88. Infra notes 236-243 and accompanying text. 116. See 42 C.F.R. § 1508.27 (b)(5) (2010) (stating that an EIS is triggered in cases where '[t]he degree to which the possible effects on the environment are highly uncertain or involve unique or unknown risks...').
89. Nic Lane, Kristina Alexander & Eugene H. Buck, CONGRESSIONAL RESEARCH SERVICE REPORT RL34453: ENDANGERED SPECIES ACT AND LEGAL ISSUES REGARDING COLUMBIA BASIN SALMON AND STEELHEAD (2008), available at http://wlstorage.net/file/crs/RL34453.pdf.
90. Michael C. Blumm & Hallison T. Putnam, Imposing Judicial Restraints on the "Art of Deception": The Courts Cast a Skeptical Eye on Columbia Basin Salmon Restoration Efforts, 38 ENVTL. L. 47 (2008).
91. FED. COL. RIVER POWER SYS. ADAPTIVE MGMT. IMPLEMENTATION PLAN, 2008-2018 FEDERAL COLUMBIA RIVER POWER SYSTEM BIOLOGICAL OPINION (Sept. 11, 2009), at 8. Joint Memorandum of Washington, Idaho and Montana In Support of Their Cross-Motion for Summary Judgment and In Opposition to Summary Judgment Motion of Plaintiffs and Oregon at 1, Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv., 839 F. Supp. 2d 1117 (D. Or. 2011).
92. Supplemental Memorandum in Support of NWF's Supplemental Motion for Summary Judgment, Nat'l Wildlife Fed'n, et al., v. Oregon (D. Or. 2010) (regarding 2010 Supplemental BiOp) (on file with authors).
93. Plaintiffs cite Natural Res. Def. Council v. Kempthorne, 506 F. Supp. 2d 355 (E.D. Cal. 2007), as it rejected an adaptive management plan that was 'in substance an organizational flow chart that prescribes that certain administrative processes (meetings) will be held whenever a trigger criteria is met or exceeded. Although mitigation measures are identified, no defined mitigation goals are required, nor is any time for implementation prescribed.'.
94. The State of Oregon's Response to the Adaptive Management Implementation Plan, Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv., 839 F. Supp. 2d 1117 (D. Or. 2011), at 3.
95. Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv., 839 F. Supp. 2d 1117, 1122 (D. Or. 2011).
96. The Jack Morrow Hills Coordinated Activity Plan, which is an amendment to the BLM's Green River Resource Management Plan in southwestern Wyoming. BUREAU OF LAND MGMT., RECORD OF DECISION AND JACK MORROW HILLS COORDINATED ACTIVITY PLAN/GREEN RIVER RESOURCE MANAGEMENT PLAN AMENDMENT (2006). The Plan uses a 'measure and trigger' matrix for various indicators, from elk distribution to sage grouse lek use. The matrix is used to 'guide' management decisions, though '[a]ction will be taken before an indicator reaches a trigger point since operating outside these bounds indicates a failure of the management strategy.'.
97. BUREAU OF LAND MGMT., JACK MORROW HILLS COORDINATED ACTIVITY PLAN/GREEN RIVER RESOURCE MANAGEMENT PLAN AMENDMENT: FINAL ENVIRONMENTAL IMPACT STATEMENT (2004), app. 17, at 12. The BLM acknowledges the uncertainty of where the measures and triggers are set and sees them as a 'first cut' that might be refined later. Id. The agency also anticipates using a 'better safe than sorry' approach in responding to various indicator changes.
98. Melinda Harm Benson, Integrating Adaptive Management and Oil and Gas Development: Existing Obstacles and Opportunities for Reform, 39 ENVT'L. L. REP. 10962 (2009).
99. BUREAU OF LAND MGMT., PINEDALE ANTICLINE PROJECT AREA SUPPLEMENTAL ENVIRONMENTAL IMPACT STATEMENT AND RECORD OF DECISION (2008), at 19. The 2008 ROD/SEIS was preceded by a ROD issued in 2000 that was challenged by oil and gas and conservation interests.
100. BUREAU OF LAND MGMT, ROAN PLATEAU PLANNING AREA: RESOURCE MANAGEMENT PLAN AMENDMENT AND ENVIRONMENTAL IMPACT STATEMENT (2006).
101. Bruce M. Pendery, BLM's Retained Rights: How Requiring Environmental Protection Fulfills Oil and Gas Lease Obligations, 40 ENVT'L. L. 599, 676 (2010).
102. The BLM was forced to consider the approach in its NEPA analysis of developing of coal bed methane in Montana's portion of the Powder River Basin. See N. Plains Res. Council v. U.S. Bureau of Land Mgmt., CV 03-69-BLGRWA, 2005 WL 6258093 (D. Mont. Apr. 5, 2005); N. Cheyenne Tribe v. Norton, 503 F.3d 836 (9th Cir. 2007).
103. Some in the petroleum industry view forms of phased development as 'unduly restrictive and violative of valid existing lease rights.' This is because some leases could be held in suspense until monitoring shows that specific resource indicators have not been breached.
104. Denise A., Dragoo, AM. PETROLEUM INSTITUTE, ADAPTIVE MANAGEMENT AS APPLIED TO OIL AND NATURAL GAS DEVELOPMENT ON ONSHORE FEDERAL LANDS 21 (2004), available at http://nwcos.org/Resources/AM%20Materials/Final%20AdaptMgt%20Report%206%2010%2004.pdf.
105. THE WILDERNESS SOC'Y, THE 2008 PINEDALE ANTICLINE PROJECT AREA (PAPA) SEIS/ROD: LESSONS AND CHALLENGES 6 (2010) (on file with authors). Theodore Roosevelt Conservation Partnership, Motion for Summary Judgment and Supporting Memorandum of Points and Authorities, Theodore Roosevelt Conservation P'ship v. Salazar, 744 F. Supp. 2d 151 (D.D.C. 2010).
106. Theodore Roosevelt Conservation P'ship v. Salazar, 744 F. Supp. 2d 151, 164 (D.D.C. 2010).
107. Phil Taylor, Mule Deer Declines in Wyo. Gas Field Warrant 'Serious' Mitigation Response, N.Y. TIMES, Oct. 21, 2010, http://www.nytimes.com/gwire/2010/10/22/22greenwire-mule-deer-declines-in-wyo-gas-field-warrant-se-56702.html?pagewanted=all.
108. 16 U.S.C. § 1539(a)(2)(A) (2006).
109. The safe harbor policy is 'designed to create incentives for non-Federal property owners to implement voluntary conservation measures for certain listed species by providing certainty with regard to possible future restrictions should the covered species later become more numerous as a result of the actions taken by the non-Federal cooperator. Non-Federal property owners, who through a Safe Harbor Agreement commit to implement voluntary conservation measures for a listed species, will receive assurances that no additional future regulatory restrictions will be imposed.' Safe Harbor Agreements and Candidate Conservation Agreements with Assurances, 69 Fed. Reg. 24,084 (May 3, 2004) (codified at 50 C.F.R. pt. 13, 17).
110. Regulatory certainty is also the main incentive behind Candidate Conservation Agreements with Assurances. These agreements provide 'non-Federal property owners who voluntarily agree to manage their lands or waters to remove threats to candidate or proposed species assurances that their conservation efforts will not result in future regulatory obligations in excess of those they agree to at the time they enter into the Agreement.' U.S. FISH & WILDLIFE SERV., CANDIDATE CONSERVATION AGREEMENTS WITH ASSURANCES FOR NON-FEDERAL PROPERTY OWNERS (2002), available at http://library.fws.gov/pubs9/cca_assurances.pdf; see 69 Fed. Reg. 24,084.
111. Spirit of Sage Council v. Norton, 294 F. Supp. 2d 67 (D.D.C. 2003).
112. George F. Wilhere, Adaptive Management in Habitat Conservation Plans, 16 CONSERVATION BIOLOGY 20 (2002).
113. Habitat Conservation Plan Assurances, 63 Fed. Reg. 8,859, 8,860 (Feb. 23, 1998) (codified at 50 C.F.R. pt. 17).
114. U.S. DEPT. OF INTERIOR & U.S. DEPT. OF COMMERCE, HABITAT CONSERVATION PLANNING AND INCIDENTAL TAKE PERMIT PROCESSING HANDBOOK, at 3-24 (1996).
115. Habitat Conservation Plan Assurances, 63 Fed. Reg. at 8,863.
116. U.S. FISH AND WILDLIFE SERV. & NAT'L MARINE FISHERIES SERV., FINAL ENVIRONMENTAL IMPACT STATEMENT AND NATIVE FISH HABITAT CONSERVATION PLAN VOL. 1 (2000), at ES-1.
117. Fish & Wildlife Serv, et al., RECORD OF DECISION: PROPOSED ISSUANCE OF A PERMIT TO PLUM CREEK TIMBER CO., AUTHORIZING INCIDENTAL TAKE OF NATIVE FISH IN MONTANA, IDAHO, AND WASHINGTON (2000).
118. PLUM CREEK TIMBER CO., FINAL PLUM CREEK TIMBER COMPANY NATIVE FISH HABITAT CONSERVATION PLAN, at 1-2 (2000).
119. This trigger is further explained to be a 'statistically significant (alpha=0.1) increase of 1.0°C in maximum weekly average temperature based on a pooling of all measured sites.'.
120. TROUT UNLIMITED, PRINCIPAL FINDINGS OF TROUT UNLIMITED'S REVIEW OF THE PROPOSED PLUM CREEK NATIVE FISH HABITAT CONSERVATION PLAN (Mar. 17, 2000) (on file with authors).
121. Letter from Bruce Farling, Trout Unlimited, to Ted Koch (Mar. 16, 2000) (on file with authors) (regarding comments on proposed Plum Creek NFHCP and DEIS).
122. Letter from Mary Scurlock, Pac. Rivers Council, to Thomas Dwer, William Stelle, Jr., Ted Koch & Bob Ries (Mar. 17, 2011) (on file with authors) (regarding Plum Creek Native Fish Habitat Conservation Plan).
123. Chris Frissell et al., AN ECOLOGICAL ASSESSMENT OF THE PLUM CREEK NATIVE FISH HABITAT CONSERVATION PLAN 24v (Pac. Rivers Council, Mar. 17, 2000).
124. On file with authors.
125. Final Rule to Identify the Northern Rocky Mountain Population of Gray Wolf as a Distinct Population Segment and to Revise the List of Endangered and Threatened Wildlife, 74 Fed. Reg. 15,123 (Apr. 2, 2009) (codified at 50 C.F.R. pt. 17). If written, the ESA requires recovery plans to include 'objective, measurable criteria which, when met, would result in a determination, in accordance with the provisions of this section, that the species be removed from the list...' 16 U.S.C. § 1533 (f)(1) (2006).
126. 16 U.S.C. §1533(a)(1) (2006); 50 C.F.R. §424.11(c) (2010).
127. Final Rule to Identify the Northern Rocky Mountain Population of Gray Wolf as a Distinct Population Segment and to Revise the List of Endangered and Threatened Wildlife, 74 Fed. Reg. at 15,124; Defenders of Wildlife v. Hall, 565 F. Supp. 2d 1160 (D. Mont. 2008) (finding Wyoming's wolf plan an inadequate regulatory mechanism because it classifies wolves as predators that are subject to unregulated killing across roughly 90 percent of the state and that Wyoming's Plan only commits the state to managing for 7 breeding pairs of wolves outside National Parks).
128. MONT. FISH, WILDLIFE & PARKS, MONTANA WOLF CONSERVATION AND MANAGEMENT PLAN: FINAL ENVIRONMENTAL IMPACT STATEMENT 74 (2004).
129. IDAHO DEPT. OF FISH & GAME, IDAHO WOLF POPULATION MANAGEMENT PLAN, 2008-2012 at 19 (2008).
130. Earthjustice's Complaint for Declaratory and Injunctive Relief, Defenders of Wildlife et al., v. Salazar, Case No. CV-09-77-M-DWM (D. Mont. June 2, 2009).
131. Bradley J. Bergstrom et al., The Northern Rocky Mountain Gray Wolf is Not Yet Recovered, 59 BIOSCIENCE 991 (2009).
132. Letter from the Fed. List of Endangered & Threatened Wildlife to Dirk Kempthorne and H. Dale Hall, Earthjustice (Feb. 27, 2008) (on file with authors) (regarding notice of violations of the Endangered Species Act in designating the Northern Rocky Mountain population of the Gray Wolf as a distinct population segment and removing that distinct population segment).
133. Earthjustice's Complaint for Declaratory and Injunctive Relief at 34, Defenders of Wildlife et al., v. Salazar, Case No. CV-09-77-M-DWM (June 2, 2009).
134. Mont. & Mont. Dept. of Fish, Wildlife & Parks' Brief Opposing Plaintiffs' Motion for Preliminary Injunction at 2, Defenders of Wildlife, et al., v. Hall, Case No. CV-08-56-MDWM (May 16, 2008).
135. Final Rule to Identify the Northern Rocky Mountain Population of Gray Wolf as a Distinct Population Segment and to Revise the List of Endangered and Threatened Wildlife, 74 Fed. Reg. 15,123, 15,149-150 (Apr. 2, 2009) (codified at 50 C.F.R. pt. 17).
136. Letter from the Fed. List of Endangered & Threatened Wildlife, supra note 187, at 5. 192. Final Rule to Identify the Northern Rocky Mountain Population of Gray Wolf as a Distinct Population Segment and to Revise the List of Endangered and Threatened Wildlife, 74 Fed. Reg. at 15,151.
137. NAT'L PARK SERV., FINAL ENVIRONMENTAL IMPACT STATEMENT ELK AND VEGETATION MANAGEMENT PLAN, ROCKY MOUNTAIN NATIONAL PARK (2007).
138. NAT'L PARK SERV., FINAL ENVIRONMENTAL IMPACT STATEMENT ELK AND VEGETATION MANAGEMENT PLAN, RECORD OF DECISION, ROCKY MOUNTAIN NATIONAL PARK (2008).
139. NAT'L PARK SERV., supra note 193, at 53.
140. Linda C. Zeigenfuss, et al., U.S. GEOLOGICAL SURVEY, OPEN-FILE REPORT 2011-1013, MONITORING PLAN FOR VEGETATION RESPONSES TO ELK MANAGEMENT IN ROCKY MOUNTAIN NATIONAL PARK (2011).
141. NAT'L PARK SERV., supra note 195, at 10-1 (These are outlined in the Record of Decision). More details are provided in the EIS. NAT'L PARK SERV., supra note 193, at 52-3. rovided in the EIS. NAT'L PARK SERV., supra note 193.
142. NAT'L PARK SERV., supra note 195, at 35.
143. NAT'L PARK SERV., supra note 193, at 56.
144. NWFP ROD, supra note 90.
145. Ruhl & Fishman, supra note 7.
146. Bernard T. Bormann et al., Adaptive Manage- ment of Forest Ecosystems: Did Some Rubber Hit the Road? 57 BIOSCIENCE 189 (2007).
147. NWFP ROD, supra note 90.
148. Bormann et al., supra note 208.
149. George H. Stankey, et al., Adaptive Management and the Northwest Forest Plan: Rhetoric and Reality, 40 J. FORESTRY 101 (2003).
150. Barry R. Noon et al., Conceptual Basis for Designing an Effectiveness Monitoring Program, in BARRY S. MULDER et al., THE STRATEGY AND DESIGN OF THE EFFECTIVENESS MONITORING PROGRAM FOR THE NORTHWEST FOREST PLAN, GEN. TECH. REP. NO. 437 (1999).
151. Bormann et al., supra note 208, at 189.
152. Ray Davis et al., NORTHWEST FOREST PLAN-THE FIRST 15 YEARS [1994-2008]: SUMMARY OF KEY MONITORING FINDINGS 2-3 (2011).
153. NWFP ROD, supra note 90, at B-12.
154. Randy Molina et al., Protecting Rare, Old-Growth, Forest-Associated Species under the Survey and Manage Program Guidelines of the Northwest Forest Plan, 20 CONSERVATION BIOLOGY 306, 310 (2006).
155. JACK WARD THOMAS, SUSTAINABILITY OF THE NORTHWEST FOREST PLAN-DYNAMIC VS. STATIC MANAGEMENT (2011), available at www.fs.fed.us/r5/nwfp/plans/sus.shtml.
156. Molina et al., supra note 219, at 311.
157. Survey and Manage, DEP'T OF INTERIOR BUREAU OF LAND MGMT, http://www.blm.gov/or/plans/surveyandmanage (last updated Jan. 2012).
158. Seattle Audubon Soc'y v. Lyons, 871 F. Supp. 1291 (W.D. Wash. 1994) (upholding the NWFP); Seattle Audubon Soc'y v. Moseley, 80 F.3d 1401 (9th Cir. 1996).
159. Lyons, 871 F. Supp. at 1324.
160. Linda C. Zeigenfuss, Therese Johnson & Zachary Wiebe, MONITORING PLAN FOR VEGETATION RESPONSES TO ELK MANAGEMENT IN ROCKY MOUNTAIN NATIONAL PARK, U.S. DEP'T INTERIOR & U.S. GEO. SURVEY (2011), available at http://pubs.usgs.gov/of/2011/1013/pdf/OF11-1013.pdf.
161. Letter from Clair M. Moseley, Exec. Dir., Public Lands Advocacy to Ted Boling, Attorney, Senior Council, at 5 (May 22, 2010) (on file with author).
162. Notice of Availability of a Final Addendum to the Handbook for Habitat Conservation Planning and Incidental Take Permitting Process, 65 Fed. Reg. 35,242, 35,245 (June 1, 2000).
163. Donald Ludwig & Carl J. Walters, FITTING POPULATION VIABILITY ANALYSIS INTO ADAPTIVE MANAGEMENT, POPULATION VIABILITY ANALYSIS (Steven R. Beissinger & Dale R. McCullough eds., 2002).
164. Suggesting that experimental adaptive management approaches to endangered species will be infrequent.
165. Notice of Availability of a Final Addendum to the Handbook for Habitat Conservation Planning and Incidental Take Permitting Process, 65 Fed. Reg. at 35,253.
166. Bradley C. Karkkainen, Towards a Smarter NEPA: Monitoring and Managing Government's Environmental Performance, 102 COLUM. L. REV. 903, 945 (2002).
167. 40 C.F.R. § 1502.14(f) (2010). The regulations define mitigation to include: a) avoiding the impact altogether by not taking a certain action or parts of an action, b) minimizing impacts by limiting the degree or magnitude of the action and its implementation, c) rectifying the impact by repairing, rehabilitating, or restoring the affected environment, d) reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action, and e) compensating for the impact by replacing or providing substitute resources or environments. 40 C.F.R. § 1508.20 (2010).
168. Robertson v. Methow Valley Citizens Council, 490 U.S. 322, 352-53 (1989).
169. Council on Envtl. Quality, Final Guidance for Federal Departments and Agencies on the Appropriate Use of Mitigation and Monitoring and Clarifying the Appropriate Use of Mitigated Findings of No Significant Impact, 76 Fed. Reg. 3,843, 3,849 (Jan 14, 2011) (codified at 40 C.F.R. pts. 1500-02, 1505 -08) [hereinafter CEQ Final Guidance on Mitigation and Monitoring] (stating that 'an agency should also commit to mitigation monitoring in important cases when relying upon an EA and mitigated FONSI').
170. Albert I. Herson, Project Mitigation Revisited: Most Courts Approve Findings of No Significant Impact Justified by Mitigation, 13 ECOLOGY L.Q. 72 (1986).
171. Dave Owen, Probabilities, Planning Failures, and Environmental Law, 84 TULANE L. REV. 265 (2009).
172. Owen, supra note 238 (citing Conner v. Burford, 848 F.2d 1441, 1450 (9th Cir. 1988)).
173. CEQ Final Guidance on Mitigation and Monitoring, supra 236, at 3,847.
174. The 2003 NEPA Task Force asked for CEQ guidance on this issue and surmised that '[w]hen using a mitigated FONSI that is not a decision document, the binding commitment must come from a statute other than NEPA and should be incorporated in an agency's decision document.' THE NEPA TASK FORCE, REPORT TO THE COUNCIL ON NVIRONMENTAL QUALITY: MODERNIZING NEPA IMPLEMENTATION 69 (2003).
175. Letter from Bruce Pendery, Attorney at Law, Wyoming Outdoor Council, to Matt Anderson, Project Lead at 42 (Apr. 5, 2007), available at http://www.wyomingoutdoorcouncil.org/html/what_we_do/air_quality/pdfs/Draft%20PAPASEIS%20Comments.pdf [hereinafter Pendery, SEIS Comments].
176. Letter from Bruce Pendery Attorney at Law, Wyoming Outdoor Council to Nancy Suttley, Chair Council on Envtl. Quality, Exec. Office of the President (Apr. 7, 2010), available at http://ceq.hss.doe.gov/current_developments/docs/mmcomments/Wyoming_Outdoor_Council_MM_Comments_04072010.pdf.
177. Forty Most Asked Questions Concerning CEQ's National Environmental Policy Act Regulations, 46 Fed. Reg. 18,026, 18,037 (Mar. 23, 1981) (codified at 40 C.F.R. pts. 1500-08).
178. CEQ Final Guidance on Mitigation and Monitoring, supra note 236, at 3,845 (CEQ notes, '[I]f there is Federal action remaining, it is appropriate for agencies to consider preparing supplementation NEPA analysis...to pursue remaining opportunities to address the effects of that remaining action.').
179. CEQ Final Guidance on Mitigation and Monitoring, supra 236, at 3,844 (stating that: 'it is an agency's underlying authority that provides the basis for the agency to com mit to perform or require the performance of particular mitigation. That authority also allows the agency to implement and monitor, or to require the implementation and monitoring of, those mitigation commitments to ensure their effectiveness.... NEPA in itself does no compel the selection of a mitigated approach. But where an agency chooses to base the use of less extensive NEPA analysis on mitigation, then this guidance is designed to assist agencies in ensuring the integrity of that decision.').
180. 32 C.F.R. § 651.15(b) (2010) (stating that mitigation measures assessed and chosen in an EA or EIS are a binding commitment: 'The proponent must implement those identified mitigations, because they are commitments made as part of the Army decision.'). 32 C.F.R. § 651.15(c) (2010) states the mitigation measures in FONSIs are legally binding commitments; if they do not occur the project proponent must submit an NOI to prepare an EIS, according to the Army's regulations.
181. The regulations also state that '[t]he mitigation shall become a line item in the proponents budget or other funding document, if appropriate, or included in the legal document implementing the action (for example, contracts, leases, or grants).' 32 C.F.R. § 651.15(b) (2010).
182. Thomas O. McGarity, Judicial Enforcement of NEPA-Inspired Promises, 20 ENVTL. L. 569 (1990).
183. For example, in Lee v. U.S. Air Force, 220 F. Supp. 2d 1229 (D.N.M. 2002), a district court held that 40 C.F.R. § 1505.3 (2001) makes it clear that agencies are bound to abide by the mitigation measures they commit to in a Record of Decision. The court explained the agency is 'legally bound by the Record of Decision,' and if they fail to uphold their commitments 'they are subject to all recourse contemplated by federal law.' 220 F. Supp. 2d at 1236. In this case, no failure had occurred; the court was responding to challenges regarding the uncertainty, at least in the view of the plaintiffs, that mitigation measures would be implemented.
184. Commitments made in the Record of Decision to mitigation measures set forth in a biological opinion also were considered legally binding. In Tyler v. Cisneros, 136 F.3d 603 (9th Cir. 1998), the court remanded a district court decision that held that claims against the Housing and Urban Development Agency for failing to enforce mitigation measures were not justiciable, because HUD had no continuing authority over the project. However, the 9th Circuit reversed, stating that HUD had some authority to act and that commitments in an ROD shall be implemented (citing 40 C.F.R. § 1505.3 (2010)). Both of these situations involved FONSIs.
185. McGarity, supra note, 255 (reviewing earlier 'late detection scenario' NEPA cases where courts ruled them moot and other cases where the court did not find the claims moot).
186. CEQ Final Guidance on Mitigation and Monitoring, supra note 236, at 3,845 (em- phasis added).
187. John M. Fitzgerald, Policy Dir., Soc'y for Conservation Biology & Lyn Arnold, Policy Assoc. Soc'y for Conservation Biology to Ted Boling, Sr. Counsel, Council on Envtl. Quality (May 24, 2010)
188. On file with author.
189. Neighbors of Cuddy Mountain v. Alexander, 303 F.3d 1059, 1065 (9th Cir. 2002).
190. Cantrell v. City of Long Beach, 241 F.3d 674 (9th Cr. 2008) (in which the adequacy of an EIS was challenged after a number of buildings and bird habitat had already been destroyed; the court held that the agency could undertake additional environmental review to seek potential alternatives and options to mitigate the habitat damage); Nw. Envtl. Def. Ctr. v. Gordon, 849 F.2d 1241 (9th Cir. 1988) (declaring that challenges to regulation for a fishing season that had ended were not mooted because effective relief could be available by allowing more fish to spawn in future years).
191. 40 C.F.R. § 1502.9(c)(1)(i-ii) (2010).
192. Westlands Water Dist. v. Dept. of Interior, 376 F.3d 853, 873 (9th Cir. 2004); see also Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378-85 (1989) (requiring agencies to take a 'hard look' at new information to assess whether NEPA supplementation is necessary).
193. Benson, supra note 138.
194. Ruhl, supra note 29, at 11-33.
195. Or. Natural Res. Council. Action v. Forest Serv., 659 F. Supp. 1441 (1987); Nw. Ecosystem Alliance v. Rey, 380 F. Supp. 2d 1175 (W.D. Wash. 2005); Klamath Siskiyou Wildlands Ctr. v. Boody, 468 F.3d 549 (9th Cir. 2006).
196. Mo.v. Army Corps of Eng'r (In re Operation of the Mo. River Sys. Litig.), 516 F.3d 688 (8th Cir. 2008).
197. Michael S. Freeman & Meg Parish, Supplemental NEPA Analyses: Triggers and Requirements, ROCKY MTN. MIN. L. FOUND., PROCEEDINGS FROM A SPECIAL INSTITUTE ON THE NATIONAL ENVIRONMENTAL POLICY ACT, at 6 (Denver, CO: Earthjustice, October 28-29, 2010), at 6.
198. On file with authors.
199. Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 72 (2004). In Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 374 (1989), the Court ruled that supplementation is necessary only if 'there remains 'major Federal action[s]' to occur.' The Court in Southern Utah Wilderness Alliance ruled that a land use plan constitutes an 'action that is completed when the plan is approved,' so there is therefore no ongoing 'major Federal action' requiring supplementation ('though BLM is required to perform additional NEPA analysis if a plan is amended or revised'). Norton, 542 U.S. at 72.
200. Michael C. Blumm & Sherry L. Bosse, Norton v. SUWA and the Unraveling of Federal Public Land Planning, 18 DUKE ENVTL. L. & POL'Y F. 105 (2007).
201. The authors note, however, that 'SUWA has not absolved agencies from all obligations to provide supplemental NEPA analysis,' such as the USFS's management of an ongoing timber contract for example, or the decision to approve a forest plan amendment. 542 U.S. 55.
202. Blumm & Bosse, supra note 271, at 133.
203. Supra notes 218-219 and accompanying text.
204. Blumm & Bosse, supra note 271, at 145 (discussing Western Watersheds Project v. Bennet, 392 F. Supp. 2d 1217 (D. Idaho 2005)).
205. Neighbors of Cuddy Mountain v. Alexander, 303 F.3d 1059 (9th Cir. 2002).
206. 36 C.F.R. § 219.19 (2010).
207. Eric Biber, The Problem of Environmental Monitoring, 83 U. COLO. L. REV. 1, 60 (2011).
208. Pac. Coast Fed'n of Fisherman's Assns. v. Gutierrez, 606 F. Supp. 2d 1122,1188 (E.D. Cal. 2008).
209. David B. Lindenmayer & Gene E. Likens, The Science and Application of Ecological Monitoring, 143 BIOLOGICAL CONSERVATION, 1317 (2010).
210. Caroline Stem, et al., Monitoring and Evaluation in Conservation: A Review of Trends and Approaches, 19 CONSERVATION BIOLOGY 295 (2005).
211. For additional information on the purposes of monitoring.
212. 16 U.S.C. § 1604(g)(3)(c) (2006) (NFMA's requirement to 'insure research on and [based on continuous monitoring and assessment in the field] evaluation of the effects of each management system to the end that it will not produce substantial and permanent impairment of the productivity of the land').
213. W.H. Moir & W.M. Block, Adaptive Management on Public Lands in the United States: Commitment or Rhetoric? 28 ENVTL. MGMT. 141 (2001).
214. Holly Doremus, Data gaps in Natural Resource Management: Sniffing for Leaks Along the Information Pipeline, 83 IND. L.J. 407 (2008).
215. Notice of Availability of a Final Addendum to the Handbook for Habitat Conservation Planning and Incidental Take Permitting Process, 65 Fed. Reg. 35,242, 35,253 (June 1, 2000); see also 16 U.S.C. § 1539(a)(2)(A) (2006); 50 C.F.R. §§ 17.22, 17.32, 222.307 (2010).
216. Peter Kareiva, et al., NATIONAL CTR. FOR ECOLOGICAL ANALYSIS & SYNTHESIS WORKING GROUP, USING SCIENCE IN HABITAT CONSERVATION PLANS 29 (1999)
217. Finding that 'barely 50% of the plans contain clear monitoring programs, and they rarely include monitoring programs that are both clear and sufficient for evaluation of a plan's success', available at http://courses.washington.edu/vseminar/Esc458-8/nceas_hcp.pdf.
218. Camacho, supra note 27, at 324.
219. Holly Doremus, The Endangered Species Act: Static Law Meets Dynamic World, 32 WASH. U. J.L. & POL'Y, 175, 228 (2010).
220. Stating that 'HCP approval under the ESA is one prominent example of giving lip service to the concept of adaptive management while ignoring its substance'.
221. 36 C.F.R. § 295.5 (2010).
222. GOV'T ACCOUNTABILITY OFFICE, FEDERAL LANDS: ENHANCED PLANNING COULD ASSIST AGENCIES IN MANAGING INCREASED USE OF OFF-HIGHWAY VEHICLES, GAO-09-509 (2009), available at http://www.gao.gov/assets/300/291861.pdf.
223. Thomas H. DeLuca et al., The Unknown Trajectory of Forest Restoration: A Call for Ecosystem Monitoring, 108 J. FORESTRY 288 (2010).
224. GOV'T ACCOUNTABILITY OFFICE, WILDLAND FIRE REHABILITATION AND RESTORATION: FOREST SERVICE AND BLM COULD BENEFIT FROM IMPROVED INFORMATION ON STATUS OF NEEDED WORK, GAO-06-670 (2006), available at http://www.gao.gov/assets/260/250705.pdf.
225. Compare Inland Empire Public Lands Council v. U.S. Forest Service, 88 F.3d 754, 761-62 (9th Cir. 1996) (ruling that nothing in the 1982 NFMA regulations mandated species population assessments via on-the-ground counting), with Sierra Club v. Martin, 168 F. 3d 1, 5-7 (11th Cir. 1999) (ruling that the USFS must count actual management indicator species on the ground based on its land-use plan). Much of this debate culminated in the decision Lands Council v. McNair, 537 F.3d 981 (9th Cir. 2008) (en banc).
226. Barry R. Noon et al. Conservation Planning for US National Forest: Conducting Comprehensive Biodiversity Assessments, 53 BIOSCIENCE 1217 (2003).
227. THE WILDERNESS SOC'Y, supra note 146, at 3.
228. Supplemental Memorandum in Support of NWF's Supplemental Motion for Summary Judgment at 10-11, Nat'lWildlife Fed. et al., v. State of Or. (D. Or. 2010) (regarding the 20120 supplemental BiOp).
229. Pendery, SEIS Comments, supra note 247, at 13 298. See e.g., Complaint for Declaratory and Injunctive Relief at 19, Western Watersheds Project et al., v. Servheen, No. 07-cv-243 (D. Idaho June 4, 2007), available at http://www.westernwatersheds.org/legal/07/grizzly/grizzlycomplaint.pdf.
230. Pendery, SEIS Comments, supra note 247, at 13.
231. Letter from Stephanie Kessler, The Wilderness Soc'y, to Don Simpson, Wyoming Dir. BLM (Jan. 6, 2010) (on file with authors).
232. Letter from Dan Heilig, W. Res. Advocates, to Chuck Otto, Field Office Manager, Pinedale BLM (Oct. 6, 2009) (on file with authors).
233. Doremus, supra note 32, at 55-56. 303. See Grazing Administration - Exclusive of Alaska, 71 Fed. Reg. 39,402 (July 12, 2006) (codified at 43 C.F.R. pt. 4100).
234. W. Watersheds Project v. Kraayenbrink, 620 F.3d 1187, 1203 (9th Cir. 2010).
235. Former CEQ General Counsel Dinah Bear summarizes: 'Money for monitoring and mitigation, particularly in the absence of a particularly high-profile issue or binding agreement, is notoriously tough to get and...always seems to be first on the budgetary chopping block.'.
236. Dinah Bear, Some Modest Suggestions for Improving Implementation of the National Environmental Policy Act, 43 NAT. RESOURCES J. 931, 945 (2003).
237. Bormann et al., supra note 208, at 189 tbl.1.
238. GOV'T ACCOUNTABILITY OFFICE, OIL AND GAS DEVELOPMENT: INCREASED PERMITTING ACTIVITY HAS LESSENED BLM'S ABILITY TO MEET ITS ENVIRONMENTAL PROTECTION RESPONSIBILITIES, GAO-05-418 (2005), at 5, available at http://www.gao.gov/new.items/d05418.pdf.
239. Final Rule Designating the Greater Yellowstone Area Population of Grizzly Bears as a Distinct Population Segment; Removing the Yellowstone Distinct Population Segment of Grizzly Bears From the Federal List of Endangered and Threatened Wildlife, 72 Fed. Reg. 14,866 (Mar. 29, 2007) (codified at 50 C.F.R. pt. 17) (discussing this issue as it pertains to grizzly bear delisting and responding to those comments citing Federation of Fly Fishers v. Daley, 131 F. Supp. 2d 1158, 1167-68 (N.D. Cal. 2000) in making this argument).
240. 16 U.S.C. § 1539(a)(2)(B)(iii) (2006).
241. KAREIVA, supra note 289, at 28 (finding that '98% of the HCPs outlined a priori the funding sources for the mitigation proposed, but only 77% had significant funds set aside to pay for mitigation at the onset of the HCP').
242. Final Rule to Identify the Northern Rocky Mountain Population of Gray Wolf as a Distinct Population Segment and to Revise the List of Endangered and Threatened Wildlife, 74 Fed. Reg. 15,123, 15,151 (Apr. 2, 2009) (codified at 50 C.F.R. pt. 17); see also Rule Designating the Greater Yellowstone Area Population of Grizzly Bears as a Distinct Population Segment; Removing the Yellowstone Distinct Population Segment of Grizzly Bears From the Federal List of Endangered and Threatened Wildlife, 72 Fed. Reg. 14,866 (Mar. 29, 2007) (codified at 50 C.F.R. pt. 17) (FWS responding to the issue of uncertain funding upon grizzly bear delisting).
243. Memorandum For Heads of Federal Departments and Agencies: Appropriate Use of Mitigation and Monitoring and Clarifying the Appropriate Use of Mitigated Findings of No Significant Impact (Jan 14, 2011), at 9, available at http://ceq.hss.doe.gov/current_developments/docs/Mitigation_and_Monitoring_Guidance_14Jan2011.pdf. This sort of assessment is often not done by agencies. In responding to an appeal of the Forest Plan Amendments necessary for the delisting of grizzly bears, the USFS states that '[i]t is outside the scope of the FEIS to analyze the implication of not receiving the funding to implement the amendment' and to conduct the promised monitoring. U.S. Forest Service, Intermountain Region, Appeal Decision #06-04-00-0051-A217 (Apr. 2, 2007) (on file with authors), available at http://www.fs.fed.us/r4/reading/appeals/decisions/bt/06-04-00-0051.pdf.
244. Pub. L. No. 105-277, 347 (1998). Under the White Mountains Stewardship Contract, for example, the Apache-Sitgreaves National Forest dedicated three percent of project costs to funding a monitoring program.
245. S. Sitko and S. Hurteau. EVALUATING THE IMPACTS OF FOREST TREATMENTS: THE FIRST FIVE YEARS OF THE WHITE MOUNTAIN STEWARDSHIP PRO JECT (2010), available at http://www.fs.usda.gov/Internet/FSE_DOCUMENTS/stelprdb5207076.pdf.
246. Though in granting an ITP, the Services must ensure that the taking will not 'appreciably' reduce the likelihood of survival and recovery of the species. 16 U.S.C. § 1539(a)(2)(B) (2006).
247. Courtney Schultz, Responding to Scientific Uncertainty in U.S. Forest Policy, 11 ENVTL. SCI. & POL'Y 253 (2008).
248. Dave Owen, Probabilities, Planning Failures, and Environmental Law, 84 TULANE L. REV. 265 (2009).
249. Holly Doremus, The Purposes, Effects, and Future of the Endangered Species Act's Best Available Science Mandate, 34 ENVTL. L. 397 (2004).
250. J.B. Ruhl, The Battle Over Endangered Species Act Methodology, 34 ENVTL. L. 555 (2004).
251. Cass R. Sunstein, Beyond the Precautionary Principle, 151 U. PA. L. REV. 1003 (2003).
252. Supplemental Memorandum in Support of NWF's Supplemental Motion for Summary Judgment, in National Wildlife Federation, et al., v. State of Oregon (D. Or. 2010), at 29 (regarding the 2010 Supplemental BiOp).
253. The State of Oregon's Response to the Adaptive Management Implementation Plan at 18, Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv., 839 F. Supp. 2d 1117 (D. Or. 2011).
254. ESA recovery plan are to include 'objective, measurable criteria which, when met, would result in a determination, in accordance with the provisions of this section, that the species be removed from the list.' 16 U.S.C. § 1533(f)(1)(B)(ii) (2006).
255. Pendery, SEIS Comments, supra note 247, at 39.
256. C.F.R. § 219 (2010).
257. National Forest System Land Management Planning, 76 Fed. Reg. 8,480, 8,517(d)(1)(iii) (proposed Feb. 14, 2011) (to be codified at 36 C.F.R. pt 219).
258. One such threshold requires management action be taken if there is a 'detrimental disturbance' of greater than fifteen percent, a number typically applied across a timber unit area.
259. Thomas H. DeLuca & Vincent Archer, Forest Soil Quality Standards Should be Quantifiable, 64 J. SOIL & WATER CONSERVATION 117, 118, 122 (2009).
260. Deborah Page-Dumrose, et al., Soil Quality Standards and Guidelines for Forest Sustainability in Northwestern North America, 138 FOREST ECOLOGY & MGMT. 445 (2000).
261. USDA FOREST SERV., FOREST PLAN AMENDMENT FOR GRIZZLY BEAR HABITAT CONSERVATION FOR THE GREATER YELLOWSTONE AREA NATIONAL FORESTS, RECORD OF DECISION (2006), available at http://www.fs.usda.gov/Internet/FSE_DOCUMENTS/stelprdb5187774.pdf.
262. David R. Montgomery, Input and Output-Oriented Approaches to Implementing Ecosystem Management, 19 ENVTL. MGMT. 183 (1995).
263. D.W. Crumpacker, Prospects for sustainability of biodiversity based on conservation biology and US Forest Service approaches to ecosystem management, 40 LANDSCAPE & URBAN PLAN. 47 (1998).
264. Malcolm L. Hunter et al., Thresholds and the Mismatch Between Environmental Laws and Ecosystems, 23 CONSERVATION BIOLOGY 1053, 1054 (2009).
265. Blumm & Putnam, supra note 117.
266. J.B. Ruhl & James Salzman, Gaming the Past: The Theory and Practice of Historic Baselines in the Administrative State, 64 VAND. L. REV. 1 (2011).
267. THE WILDERNESS SOC'Y, supra 146, at 2.
268. Plaintiff's Motion for Summary Judgment and Supporting Memorandum of Points and Authorities at 14, Theodore Roosevelt Conservation P'ship v. Salazar, Case No. 1:08-cv-1047-RJL (D.D.C. Oct. 9, 2009), available at http://www.eenews.net/public/25/17642/features/documents/2009/10/15/document_ll_02.pdf.