Western Watersheds Project v. McKay

In an unpublished memorandum, the Ninth Circuit Court of Appeals found that the U.S. Fish and Wildlife Service (FWS) did not adequately address climate change in a biological opinion (BiOp) that considered the impacts on the Oregon spotted frog of a new framework for livestock grazing on the Antelope Allotment in the Fremont-Winema National Forest in south-central Oregon. The court found that the BiOp did not account for climate change as a cumulative effect or baseline condition because it failed to consider how climate change would affect the frog in non-drought years. The Ninth Circuit said the BiOp needed to consider whether the frog population “could sustain grazing-related impacts on top of potential climate change effects,” which the record indicated included “stranding and higher egg mortality due to increased exposure to ultraviolet radiation and pathogens.” In addition, the court noted that the BiOp acknowledged threats posed by low water conditions but found that the BiOp failed to address available information regarding climate change’s impact on the frequency or severity of low water conditions. The Ninth Circuit said it could not address the FWS’s arguments regarding the “too speculative” nature of the climate change information because this explanation was not in the BiOp. In addition, the Ninth Circuit concluded that the BiOp’s mitigation strategies to exclude cattle from critical frog habitat in low water conditions did not render the lack of climate change analysis harmless. The court noted the absence of information indicating that the mitigation strategies “were developed with climate change in mind” and further found that the FWS could not rely on mitigation measures in the absence of a plan to ensure they were implemented. The court concluded, however, that the U.S. Forest Service’s consideration of the effects of climate change and increasing drought on Oregon spotted frogs in the final environmental impact statement, unlike in the BiOp, was sufficient and also ruled for the Forest Service on claims under the National Forest Management Act.