Defenders of Wildlife, Et Al. v. USFS, Et Al.

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION
DEFENDERS OF WILDLIFE, )
MOUNTAINTRUE, SIERRA CLUB, and )
CENTER FOR BIOLOGICAL DIVERSITY, )
)
Plaintiffs, )
)
v. ) Civil Case No. 1:24-cv-118
)
THE UNITED STATES FOREST )
SERVICE, FOREST SUPERVISOR JAMES ) COMPLAINT
MELONAS, THE UNITED STATES FISH )
AND WILDLIFE SERVICE, and )
DIRECTOR MARTHA WILLIAMS, )
)
Defendants. )
)
INTRODUCTION
1. The Nantahala and Pisgah National Forests (the “Forests”) provide invaluable
habitat for four critically endangered bats: the northern long-eared bat, the Indiana bat, the
Virginia big-eared bat, and the gray bat. Because these bats are likely to be adversely affected by
the U.S. Forest Service’s 2023 revised land management plan for the Forests (the “2023 Forest
Plan”), the Forest Service consulted with the U.S. Fish and Wildlife Service pursuant to
Section 7 of the Endangered Species Act. That consultation was arbitrary, capricious, and not in
accordance with law, in violation of the Endangered Species Act, 16 U.S.C. § 1536(a)(2), and
the Administrative Procedure Act, 5 U.S.C. § 706(2)(A). As a result, the biological opinion
produced through that consultation process should be vacated.
2. The 2023 Forest Plan governs all activities on the Forests. Forest plans are akin to
a zoning map and set of ordinances: They tell the Forest Service where certain activities are
allowed on the Forests; what levels of activity are allowed in those areas; and how those
Case 1:24-cv-00118 Document 1 Filed 04/18/24 Page 1 of 90

activities must be conducted, among other things. For example, the 2023 Forest Plan dictates
which areas are suitable for timber production; what amount of logging is allowed in those areas,
and for what purpose; and how timber harvests must be conducted to protect natural resources
and wildlife, including endangered bats.
3. These planning-level decisions can be a matter of life and death for the
endangered bats inhabiting the Forests. Planning decisions that allow logging and other
vegetation management activities in bat habitat increase the risk of adverse effects to those bats
because timber projects carrying out the 2023 Forest Plan can kill roosting bats and their
flightless pups. Even if logging operations avoid directly killing bats, tree clearing can eliminate
multi-generational roost trees or favored foraging areas that bats return to year after year,
reducing valuable habitat and making bats more vulnerable to other stressors like disease and
climate change.
4. Because logging poses a threat to endangered forest bats, where and how the
Forest Service allows logging on the Forests—which contain some of the best remaining intact
bat habitat in the Appalachians—can tip the scales toward species recovery or extirpation and
extinction. Unfortunately, the 2023 Forest Plan calls for actions that will adversely affect
endangered bats but fails to provide adequately for beneficial actions to offset those effects or
limits to mitigate negative impacts.
5. The four endangered bats inhabiting the Forests are already on the ropes. Several
of these species have been devastated by a fungal disease called white-nose syndrome that has
systematically killed bats in each hibernaculum it infects. Northern long-eared bats, for example,
have seen their numbers plummet by more than 90% over the past fifteen years, primarily due to
white-nose syndrome. The same disease also contributed to a 94% decline in the local population
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of Indiana bats using the Forests—a population the Forest Service has recognized is “critical to
[the] species’ persistence into the future.”
6. When endangered or threatened species are teetering on the brink like this, the
Endangered Species Act requires federal agencies like the Forest Service to ensure that their
actions will not jeopardize those species’ continued existence or prospects for recovery. To
determine whether an action like the 2023 Forest Plan might violate this substantive duty, the
Forest Service must consult with the Fish and Wildlife Service. Here, that consultation process
resulted in a formal “biological opinion” that concluded the 2023 Forest Plan would not
jeopardize endangered bats.
7. But the consultation for the 2023 Forest Plan was flawed from the start. The
Endangered Species Act required the Forest Service to supply the Fish and Wildlife Service with
the best scientific data available to inform the consultation. Instead, the Forest Service gave the
Fish and Wildlife Service information it knew was inaccurate and incomplete.
8. For example, even though the Forest Service was well aware that fire, landslides,
storms, and disease-related canopy loss are expected to increase in the future due to climate
change—compounding harms to endangered bats—the Forest Service informed the Fish and
Wildlife Service that natural events like these would decline on the Forests in the coming
decades. This unsupported prediction became a key part of the Forest Service’s justification for
increasing the levels of timber production called for in the 2023 Forest Plan—including in
occupied bat habitat.
9. Similarly, though the Forest Service knew that the increased logging levels in the
2023 Forest Plan would require hundreds of miles of new road construction—fragmenting and
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degrading intact bat habitat—it erroneously told the Fish and Wildlife Service that there would
be no “gain in overall road miles” across the Forests.
10. The Fish and Wildlife Service then compounded the Forest Service’s errors by
crafting a deeply flawed biological opinion for the 2023 Forest Plan.
11. Among other serious errors, the biological opinion consistently ignores the best
available scientific data. For example, the opinion declines to consider readily available data on
endangered bats’ ranges within the Forests; discounts information on bats’ habitat preferences;
and ignores information on cumulative effects that will compound harms to endangered bats.
12. The biological opinion also consistently fails to draw a rational connection
between facts in the record and its conclusion that the 2023 Forest Plan will not jeopardize
endangered bats. For instance, the opinion acknowledges that implementation of the 2023 Forest
Plan will adversely affect these bats in the short term—i.e., during the next few decades. It
nevertheless concludes that the “short-term” adverse effects authorized by the 2023 Forest Plan
would be balanced out by eventual habitat improvements decades in the future. But eventual
habitat improvements are of no value to species that have been extirpated in the interim.
Northern long-eared bats, for example, are predicted to become functionally extinct in the next
few decades absent further protective action—action that the Fish and Wildlife Service knew
was necessary but nevertheless did not require during consultation.
13. Defenders of Wildlife, MountainTrue, Sierra Club, and the Center for Biological
Diversity (“Conservation Groups”) seek a declaration that the Forest Service violated the
Endangered Species Act by failing to supply the Fish and Wildlife Service with the best
available scientific data and arbitrarily relying on the consequently flawed biological opinion.
Conservation Groups also seek a declaration that the Fish and Wildlife Service violated the
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Endangered Species Act and the Administrative Procedure Act in issuing the biological opinion
because it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law. Conservation Groups additionally request that the Court vacate the biological opinion and
enjoin the Forest Service from relying on it until the agencies complete a new formal
consultation that complies with the law.
JURISDICTION AND VENUE
14. This action arises under the Endangered Species Act (“ESA”), 16 U.S.C.
§§ 1531–44, and the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701–06. This Court
has jurisdiction over this action pursuant to 28 U.S.C. § 1331 (federal question jurisdiction),
28 U.S.C. § 1346(a)(2) (United States as defendant); 5 U.S.C. § 702 (APA judicial review), and
16 U.S.C. § 1540(g) (ESA citizen-suit provision). This Court may issue a declaratory judgment
and further relief requested pursuant to the Declaratory Judgment Act, 28 U.S.C. §§ 2201–2202.
15. The biological opinion (“BiOp”) that Conservation Groups challenge here is a
final agency action within the meaning of the APA and accordingly is judicially reviewable
under § 704 of that act. See Dow AgroSciences LLC v. Nat’l Marine Fisheries Serv., 637 F.3d
259, 261 (4th Cir. 2011).
16. As required by ESA Section 11, 16 U.S.C. § 1540(g)(2)(A)(i), Conservation
Groups gave notice of the ESA violations alleged in Claims 7 and 8 of this complaint and
Conservation Groups’ intent to sue under the ESA more than 60 days prior to the filing of this
complaint. Defendants have not remedied the violations alleged in the notice letter and
Defendants’ violations are continuing.
17. Venue is proper in this District under 28 U.S.C. § 1391(e)(1)(B) because
Defendants are agencies, officers, or employees of the United States acting in their official
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capacities, and a substantial part of the events or omissions giving rise to the claims occurred in
the District. Venue is also proper in this District under 28 U.S.C. § 1391(e)(1)(C) because
Defendants are agencies, officers, or employees of the United States acting in their official
capacities, no real property is involved in this action, and Plaintiff MountainTrue is
headquartered in the District.
PARTIES
Plaintiff Conservation Groups
18. All of the Conservation Groups, as part of their core missions, work to protect
publicly owned national forests and the endangered and threatened species that inhabit them.
These include the northern long-eared bat, Indiana bat, Virginia big-eared bat, and gray bat.
19. Relevant here, that work takes place at two levels of Forest Service decision-
making. First, Conservation Groups engage in forest planning, including the processes that
culminated in the 2023 Forest Plan. Second, Conservation Groups engage in the processes that
culminate in individual logging and other projects. These individual projects are intended to
implement the objectives of the forest plan and the two phases are generally referred to as “plan-
level” decisions and “project-level” decisions.
20. Conservation Groups engaged in good faith for many years in the plan-level
processes that ultimately resulted in the 2023 Forest Plan. Through that process, they sought to
limit logging in sensitive forest areas with outsized ecological importance, including habitat for
bats listed as endangered or threatened under the ESA; to limit certain kinds of logging more
likely to harm listed bats; and to include plan standards that would protect bats at the project
level. Unfortunately, the 2023 Forest Plan fails to protect listed bats consistent with the
requirements of the ESA, meaning Conservation Groups will have to invest significantly more
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resources at the project level to mitigate harm from Forest Service proposals affecting listed bats
and their habitats.
Defenders of Wildlife
21. Plaintiff Defenders of Wildlife (“Defenders”) is a national nonprofit organization
headquartered in Washington, D.C. Founded in 1947, Defenders is dedicated to the protection of
all native animals and plants in their natural communities, including our country’s most
imperiled wildlife and habitats. Restoring vulnerable or listed North American species to the
point that they are secure—no longer threatened with rapid decline or extinction—and thriving in
robust, well-distributed populations is a central part of Defenders’ conservation vision.
22. Defenders has more than two million members and supporters nationwide,
including members in all fifty states and 56,912 members and supporters in North Carolina.
Many North Carolina members enjoy recreating in the Nantahala and Pisgah National Forests,
where they enjoy fishing, hunting, birding, hiking, mountain biking, trail running, kayaking,
rafting, camping, scenic driving, studying nature, learning outdoor skills, and observing or
searching for rare and listed species, including bats.
23. Defenders’ members and staff derive scientific, aesthetic, recreational, and
spiritual benefit from the existence of the natural features of the Forests and the wildlife species
that depend on them. In particular, Defenders’ members and staff, like Ben Prater, value the
presence of endangered bats including the northern long-eared bat, Indiana bat, Virginia big-
eared bat, and gray bat. Defenders’ members and staff value these species for their own sake and
because of the crucial role they play in the mountain ecosystem. Defenders’ members and staff,
like Mr. Prater, frequently visit the Forests to observe bats and plan to continue visiting the
Forests to search for and observe these listed bats in the future.
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24. Defenders’ members and staff’s scientific, aesthetic, recreational, and spiritual
interests in listed bats are threatened by the 2023 Forest Plan and the legally insufficient BiOp
which supports that Plan. The 2023 Forest Plan significantly expands the areas where logging
will occur into areas known to harbor forest bats, increasing the risk that Forest Service projects
will kill bats outright or destroy their habitat. The 2023 Forest Plan further exacerbates this risk
because it fails to require that the Forest Service survey for bats before logging. Extensive
logging and other activities authorized by the 2023 Forest Plan will fragment some of the last
and best available habitat for these bats in the region, which are already threatened by the
compounding effects of white-nose syndrome and climate change, harming endangered bats on
the Forests and Defenders’ members’ interests in these bats. These and other effects of the 2023
Forest Plan were enabled by the Fish and Wildlife Service’s flawed BiOp.
25. Defendants’ flawed consultation and the 2023 Forest Plan it supports also inflict
organizational harm on Defenders. Defenders’ primary mission is to protect native species and
the natural communities they live in. As a result, Defenders invests nearly all of its
organizational resources in efforts to conserve native species like endangered bats. The 2023
Forest Plan makes it much more difficult and expensive for Defenders to accomplish its primary
mission because it misses an opportunity to recover bat populations and instead opens up more
bat habitat to destructive logging. As a result, Defenders will have to expend additional time and
resources defending bats at the project level. Those efforts are less likely to be successful
because the 2023 Forest Plan lacks adequate plan standards and guidelines to protect bats from
logging and other activities and does not require the Forest Service to conduct bat surveys before
these projects begin.
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26. The Forest Service’s and the Fish and Wildlife Service’s failure to adequately
assess the 2023 Forest Plan’s effects on listed bats also inflicts informational harm on Defenders.
Part of Defenders’ mission involves informing their members and the public about decisions
made affecting native species and their natural communities. The Forest Service’s failure to pass
along accurate information during consultation, and the Fish and Wildlife Service’s subsequent
failure to accurately disclose the impacts of the 2023 Forest Plan on listed bats in its BiOp,
hampers Defenders’ ability to inform its members and the public about those effects.
27. The actual, organizational, and informational injuries to Defenders and its
members and staff can be traced to the flawed consultation between the Forest Service and the
Fish and Wildlife Service. Because the agencies’ flawed consultation process led to a deficient
BiOp, the 2023 Forest Plan fails to protect endangered bats consistent with the ESA which will
result in unassessed adverse effects on the endangered bats that Defenders and its members and
staff treasure and work to protect.
28. The actual or imminent, concrete, and particularized injuries to Defenders and its
members and staff would be redressed by an order from this Court vacating the BiOp for the
2023 Forest Plan and remanding to the Forest Service and the Fish and Wildlife Service for a
new formal consultation.
MountainTrue
29. MountainTrue is a nonprofit corporation with its principal office in Asheville,
North Carolina, and smaller offices in Hendersonville, Boone, and Murphy, North Carolina.
MountainTrue’s mission is to champion clean water, resilient forests, and healthy communities
in the Southern Blue Ridge Mountains. Protecting all native species, including species listed
under the ESA, is key to MountainTrue’s mission of creating resilient forest ecosystems.
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30. MountainTrue has 23 staff members, over 2,000 members, and 12,000 supporters,
primarily in North Carolina. Many of these members and staff live near the Nantahala and Pisgah
National Forests. Some of these members run or patronize businesses or conduct scientific
research that depends on healthy, vibrant, and biodiverse national forest lands nearby. Many
members regularly visit the Forests to hike, fish, kayak, whitewater raft, camp, bird watch, trail
run, mountain bike, research, take photographs, go on scenic drives, experience Wilderness, and
observe rare and threatened species, including bats.
31. MountainTrue’s members and staff derive scientific, aesthetic, recreational, and
spiritual benefit from the existence of the natural features of the area, including the Forests and
the wildlife species that depend on them. In particular, MountainTrue’s members value the
presence of endangered bats, including the northern long-eared bat, Indiana bat, Virginia big-
eared bat, and gray bat. MountainTrue’s members, including Josh Kelly, value these species for
their own sake and because of the crucial role they play in the mountain ecosystem. Bats are key
pollinators and control pests of all types, and they are strong indicators of a healthy and resilient
forest ecosystem. MountainTrue’s members, like Mr. Kelly, frequently visit the Forests to
observe bats and plan to continue visiting the Forests to search for and observe listed bats in the
future.
32. MountainTrue’s members’ scientific, aesthetic, recreational, and spiritual interests
in these bats are threatened by the expanded logging and management authorized by the 2023
Forest Plan and the legally insufficient BiOp which supports that Plan. Because the 2023 Forest
Plan opens sensitive biological areas to logging and proposes a dramatic increase in the amount
of logging that will occur on the Forests, it poses a threat to endangered species like the northern
long-eared bat that prefer older, more mature forests as roosting and foraging habitat, and for use
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as travel corridors. Logging in areas occupied by bats can directly harm them by crushing or
smothering them. Logging and other activities can also indirectly harm bats by eliminating
favored habitat. Because all of the endangered bats inhabiting the Forests exhibit strong site
fidelity, meaning they like to return to the same areas every year to feed and breed, destroying
their habitat increases energetic demands on these bats and thereby lowers their reproductive
fitness. Because the 2023 Forest Plan opens up this habitat to increased logging incompatible
with listed bats’ habitat requirements, it directly threatens MountainTrue’s members’ interests in
listed bats. These injuries were enabled by the Fish and Wildlife Service’s flawed BiOp.
33. Defendants’ flawed consultation and the 2023 Forest Plan it supports also inflict
organizational harm on MountainTrue. MountainTrue invests significant time and resources
attempting to protect native species, including endangered bats, as part of its mission to conserve
and create resilient forest ecosystems. The 2023 Forest Plan makes it much more difficult and
expensive for MountainTrue to fulfill this objective because it not only fails to promote listed bat
recovery but also opens up more bat habitat to inappropriate forest management. As a result,
MountainTrue will have to expend additional time and resources defending bats at the project
level. Those efforts are less likely to be successful because the 2023 Forest Plan lacks adequate
plan standards and guidelines to protect bats from these projects.
assess the 2023 Forest Plan’s impacts on listed bats also inflicts informational harm on
MountainTrue. Part of MountainTrue’s mission involves informing its members and the public
about decisions made affecting public lands and the species inhabiting them. The Forest
Service’s failure to pass along accurate information during consultation, and the Fish and
Wildlife Service’s subsequent failure to accurately disclose the impacts of the 2023 Forest Plan
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on endangered bats hampers MountainTrue’s ability to inform its members and the public about
those effects.
35. The actual, organizational, and informational injuries to MountainTrue and its
result in unassessed adverse effects on the endangered bats that MountainTrue and its members
and staff treasure and work to protect.
36. The actual or imminent, concrete, and particularized injuries to MountainTrue and
its members would be redressed by an order from this Court vacating the BiOp for the 2023
Forest Plan and remanding to the Forest Service and the Fish and Wildlife Service for a new
formal consultation.
Sierra Club
37. Sierra Club is a nonprofit, grassroots organization founded in 1892 to explore,
enjoy, and protect the wild places of the earth; to practice and promote the responsible use of
the earth’s ecosystems and resources; to educate and enlist humanity to protect and restore the
quality of the natural and human environment; and to use all lawful means to carry out these
objectives.
38. Sierra Club has 3.8 million current members and supporters across 60 chapters,
including an especially active North Carolina Sierra Club chapter. Many of these members live
near and regularly visit the Nantahala and Pisgah National Forests or patronize businesses that
depend on healthy, vibrant, and biodiverse national forest lands nearby. These members
regularly enter the Forests to hike, camp, bird watch, run, ride bicycles, conduct research, take
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photographs, enjoy scenic drives, fish, kayak, whitewater raft, and observe rare and threatened
species, including bats.
39. Sierra Club’s members derive scientific, aesthetic, recreational, and spiritual
benefit from the existence of the natural features of the Forests and the wildlife species that
depend on them, such as the northern long-eared bat, Indiana bat, Virginia big-eared bat, and
gray bat. Sierra Club members, like Hugh Irwin, frequently visit the Forests to observe bats
and plan to continue visiting the Forests to search for and observe listed bats in the future.
Their interests are directly threatened by the expansion of permanent, destructive forest
management practices into sensitive areas, such as occupied bat habitats, as sanctioned by the
2023 Forest Plan and the legally insufficient BiOp which supports that Plan.
40. Sierra Club, through its western North Carolina Group (which is part of the North
Carolina chapter), has participated in the management of the Forests for decades and is active
in administrative and decision-making processes on the Forests. For example, Sierra Club
meaningfully contributed to extensive comments on, and later an objection to, the draft and
final revised forest plan for the Forests.
41. Sierra Club will continue to be involved in resource management decisions on the
Forests. Because the 2023 Forest Plan—enabled by the Fish and Wildlife Service’s flawed
BiOp—lacks meaningful commitments to recover bat populations or even to mitigate harm to
listed bats and their habitat, the Sierra Club will be required to expend additional time and
resources at the project level to protect the organization’s interests in listed bats using the
Forests. This increase in resource expenditure constitutes organizational harm to Sierra Club.
assess the 2023 Forest Plan’s effects on listed bats also inflicts informational harm on Sierra
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Club, whose mission involves informing its members and the public about ecosystem health,
including listed species. The Forest Service’s failure to pass along accurate information during
consultation, and the Fish and Wildlife Service’s subsequent failure to accurately disclose the
impacts of the 2023 Forest Plan on endangered bats, hampers Sierra Club’s ability to inform its
members and the public about those effects.
43. The actual, organizational, and informational injuries to Sierra Club and its
members can be traced to the flawed consultation between the Forest Service and the Fish and
Wildlife Service. Because the agencies’ flawed consultation process led to a deficient BiOp, the
2023 Forest Plan fails to protect endangered bats consistent with the ESA which will result in
unassessed adverse effects on the endangered bats that Sierra Club and its members treasure and
work to protect.
44. The actual or imminent, concrete, and particularized injuries to Sierra Club and its
members would be redressed by an order from this Court vacating the BiOp for the 2023 Forest
Plan and remanding to the Forest Service and the Fish and Wildlife Service for a new formal
consultation.
Center for Biological Diversity
45. The Center for Biological Diversity (“the Center”) is a national nonprofit
organization with its Southeast Program headquarters in Asheville, North Carolina. The Center
was founded in 1989 with the belief that the welfare of human beings is deeply linked to nature,
and specifically to the existence of a vast diversity of wild animals and plants. The Center’s
mission is to work to secure a future for all species, great and small, hovering on the brink of
extinction through science, law, and creative media, with a focus on protecting the lands, waters,
and climate that species need to survive. The Center’s mission is driven by a desire to preserve
these resources both for their inherent value and for their value to future generations.
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46. The Center has more than 1.7 million members and active campaign participants
across the United States, including more than 35,000 members and active supporters in North
Carolina. Many of these members enjoy recreating in the Nantahala and Pisgah National
Forests, where they hike, camp, bird watch, run, ride bicycles, take photographs, enjoy scenic
drives, conduct scientific research, fish, kayak, whitewater raft, and observe rare and
threatened species and other wildlife, including bats. Many of these members patronize
businesses that depend on healthy, vibrant, and biodiverse national forest lands nearby. Center
members and supporters submitted more than 14,000 administrative objections to the 2023
Forest Plan, and they participated in a rally for stronger species protections in the Plan that
attracted more than 400 participants.
47. The Center’s members and staff derive scientific, aesthetic, recreational, and
spiritual benefits from the existence of the natural features of the Forests and the wildlife species
that depend on them. For example, members and staff such as Will Harlan frequently visit the
Forests to observe listed bats and plan to continue visiting the Forests to search for and observe
listed bats in the future. These members and staff derive value from the existence of these
endangered bats and the ecosystem services they provide. Their interests are threatened by the
2023 Forest Plan’s expansion of logging operations into areas of known bat habitat and the
Plan’s failure to provide meaningfully protective standards that would avoid or minimize harm to
bat populations. These and other effects of the 2023 Forest Plan were enabled by the Fish and
Wildlife Service’s flawed BiOp.
48. The Center is also harmed organizationally by the failures in the 2023 Forest Plan
and by the Forest Service’s and the Fish and Wildlife Service’s failure to adequately protect
endangered bats at the Plan level. Because protection of all species, especially imperiled ones, is
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central to the Center’s mission, the organization will advance protection work by any legal
means necessary. Without adequate plan-level protections, this will necessitate significantly
increased expenditure of resources at the project level so that the Center and its members can be
involved in the administrative process for each project on the Forests that might impact
endangered bats.
49. The flawed consultation for the 2023 Forest Plan also inflicts informational harm
on the Center, whose mission involves informing its members and the public about the status of
endangered species and their habitat. The Forest Service’s failure to pass along accurate
information during consultation, and the Fish and Wildlife Service’s subsequent failure to
accurately disclose the impacts of the 2023 Forest Plan on endangered bats, hampers the Center’s
ability to inform its members and the public about those effects.
50. The actual, organizational, and informational injuries to the Center and its
result in unassessed adverse effects on the endangered bats that the Center and its members and
staff treasure and work to protect.
51. These actual or imminent, concrete, and particularized injuries to the Center and
its members would be redressed by an order from this Court vacating the BiOp for the 2023
Forest Plan and remanding to the Forest Service and the Fish and Wildlife Service for a new
formal consultation.
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Defendants
United States Forest Service
52. Defendant United States Forest Service is a federal agency within the United
States Department of Agriculture. The Forest Service is charged with stewarding the 1.1 million
acres in the Nantahala and Pisgah National Forests in North Carolina.
53. The Forest Service is responsible for ensuring that its actions—including the
promulgation of the 2023 Forest Plan—comply with the ESA and its implementing regulations.
This includes an obligation to ensure that the 2023 Forest Plan will not jeopardize ESA-listed
species or result in the destruction or adverse modification of their critical habitat.
Forest Supervisor James Melonas
54. Defendant James Melonas is the Forest Supervisor for the Forest Service’s
National Forests in North Carolina administrative unit which includes the Nantahala and Pisgah
National Forests. While the Nantahala and Pisgah National Forests are technically two separate
Forests, they are combined for purposes of forest planning and the 2023 Forest Plan applies to
both. Mr. Melonas is sued in his official capacity.
55. Mr. Melonas is the responsible official who signed the 2023 Forest Plan and is
ultimately responsible for ensuring that the 2023 Forest Plan complies with the ESA and its
implementing regulations.
United States Fish and Wildlife Service
56. Defendant United States Fish and Wildlife Service is a federal agency within the
Department of the Interior. The Fish and Wildlife Service is responsible for administering the
provisions of the ESA for listed terrestrial and freshwater species, including the endangered bats
that are the subject of this action.
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57. The Fish and Wildlife Service prepared the BiOp challenged in this action and
was responsible for ensuring that the document complied with the ESA and its implementing
regulations.
Director Martha Williams
58. Defendant Martha Williams is the Director of the Fish and Wildlife Service and is
sued in her official capacity.
59. Director Williams had the final authority over the Fish and Wildlife Service’s
preparation and approval of the BiOp challenged in this action.
LEGAL BACKGROUND
The National Forest Management Act
60. Since 1960, national forests have been managed pursuant to a “multiple use”
mandate. See Multiple-Use Sustained-Yield Act of 1960, Pub. L. No. 86-517, 74 Stat. 215
(1960). Those “multiple uses” include outdoor recreation, range, timber, watershed, wildlife and
fish, and wilderness. 16 U.S.C. §§ 528, 529, 1604(e).
61. Congress passed the National Forest Management Act (“NFMA”) in 1976 to help
balance and achieve these multiple uses across the national forest system. See Pub. L. No. 94-
588, 90 Stat. 2949 (1976).
62. To that end, NFMA requires the Forest Service to “develop, maintain, and, as
appropriate, revise land and resource management plans for units of the National Forest System.”
16 U.S.C. § 1604(a). These “forest plans” are to be revised every fifteen years, id. § 1604(f)(5),
although in practice they tend to persist considerably longer, see, e.g., Pub. L. No. 117-328, div.
G, title IV, § 407, 136 Stat. 4821 (2022) (codified at 16 U.S.C. § 1604 note) (extending the
fifteen-year deadline provided the agency is “acting expeditiously and in good faith, within the
funding” available, to revise outdated forest plans).
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63. Forest plans are effectively a blueprint for what will happen on a national forest
over the life of the forest plan—including, as relevant here, the amount, location, type,
restrictions on, and reasons for logging on a forest. The Forest Service then implements the
forest plan through individual projects.
64. NFMA’s requirements for forest plan development and revision are implemented
through Forest Service regulations collectively known as the “Planning Rule.” See 36 C.F.R.
§ 219. The 2023 Forest Plan was revised using the Forest Service’s 2012 Planning Rule, which
requires that forest plans provide for ecological sustainability and the persistence of native
species within the plan area. Id. §§ 219.8, 219.9. The Forest Service must also balance other
“multiple uses” of national forest lands, including recreation and timber, but only to the extent it
can do so while meeting the requirements for ecological sustainability and biodiversity
protection.
65. Forest plans typically identify “management areas.” Id. § 219.7(d). A
“management area” is a “land area identified within the planning area that has the same set of
applicable plan components.” Id. § 219.19. A forest plan establishes multiple “management
areas” on each national forest, akin to dividing a county into zoning districts.
66. Like county ordinances that apply to a zoning district, forest plan “components”
set priorities or limitations for each management area. See generally id. § 219.7(e). Two types of
forest plan “components” are particularly relevant here. First, a forest plan “standard” is a type of
component that is a “mandatory constraint on project and activity decisionmaking.” Id.
§ 219.7(e)(1)(iii). Second, a “guideline” is “a constraint on project and activity decisionmaking
that allows for departure from its terms, so long as the purpose of the guideline is met.” Id.
§ 219.7(e)(1)(iv).
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67. The 2012 Planning Rule requires the Forest Service to develop plan components,
including standards or guidelines, to conserve native species within the plan area. The
development of these components occurs in two steps.
68. First, at a broad scale, the Forest Service must develop “plan components,
including standards or guidelines, to maintain or restore the ecological integrity of terrestrial and
aquatic ecosystems and watersheds in the plan area, including plan components to maintain or
restore their structure, function, composition, and connectivity.” Id. § 219.9(a)(1); see also U.S.
Forest Serv., Final Programmatic Environmental Impact Statement, National Forest System Land
Management Planning 105 (2012) (“[The 2012 Planning Rule] clearly and explicitly focuses on
maintaining desired ecological conditions where they currently exist and restoring ecological
conditions that have been degraded, damaged or destroyed.”).
69. “Ecological integrity” is achieved when an ecosystem’s “dominant ecological
characteristics . . . occur within the natural range of variation and can withstand and recover from
most perturbations imposed by natural environmental dynamics or human influence.” 36 C.F.R.
§ 219.19.
70. The “natural range of variation” means the “range of ecological conditions
established within the limits of the natural landforms, vegetation, and disturbance processes that
existed before extensive human alteration.” Forest Service Handbook 1909.12.23.1. This
approach is based on the “concept that the environmental conditions that sustained species and
other ecosystem components in the past are likely to sustain them (at least in the short term) in
the future.” Id.
71. Second, the Forest Service must determine if restoring ecological conditions
broadly is sufficient to “provide the ecological conditions necessary to[] contribute to the
20
recovery of federally listed threatened and endangered species.” 36 C.F.R. § 219.9(b)(1). If not,
“then additional, species-specific plan components, including standards or guidelines, must be
included in the plan to provide such ecological conditions in the plan area.” Id.
72. When revising forest plans, the Forest Service must also comply with other laws,
including the ESA.
The Endangered Species Act
73. In enacting the ESA, Congress recognized that certain species “have been so
depleted in numbers that they are in danger of or threatened with extinction” and that these
species are “of esthetic, ecological, educational, historical, recreational, and scientific value to
the Nation and its people.” 16 U.S.C. § 1531(a)(2), (3).
74. The ESA protects imperiled species by listing them as “endangered” or
“threatened.” A species is “endangered” if it “is in danger of extinction throughout all or a
significant portion of its range.” Id. § 1532(6). A species is “threatened” if it “is likely to become
an endangered species within the foreseeable future throughout all or a significant portion of its
range.” Id. § 1532(20).
75. The ESA seeks “to provide a means whereby the ecosystems upon which
endangered and threatened species depend may be conserved, [and] to provide a program for the
conservation of such . . . species.” Id. § 1531(b). The ESA defines conservation as “the use of all
methods and procedures which are necessary to bring any endangered species or threatened
species to the point at which the measures provided pursuant to [the ESA] are no longer
necessary.” Id. § 1532(3). Accordingly, the ultimate goal of the ESA is not only to prevent listed
species from going extinct, but also to recover these species to the point where they no longer
require ESA protection. As explained by the Supreme Court, the “plain intent of Congress in
21
enacting [the ESA] was to halt and reverse the trend toward species extinction, whatever the
cost.” Tenn. Valley Auth. v. Hill, 437 U.S. 153, 184 (1978).
76. “To that end, the Endangered Species Act requires federal agencies ‘to afford first
priority to the declared national policy of saving endangered [or threatened] species’—even
when this goal conflicts with agencies’ ‘primary missions.’” Appalachian Voices v. U.S. Dep’t of
Interior, 25 F.4th 259, 264 (4th Cir. 2022) (quoting Tenn. Valley Auth., 437 U.S. at 185).
77. This goal is codified in ESA Section 7(a)(2), which commands each federal
agency to ensure “that any action authorized, funded, or carried out by such agency . . . is not
likely to jeopardize the continued existence of any endangered species or threatened species or
result in the destruction or adverse modification of habitat of such species.” 16 U.S.C.
§ 1536(a)(2).
78. To police the substantive duty to avoid jeopardizing listed species, the ESA and
its implementing regulations set out a detailed consultation process to assess the effects of
proposed agency actions. Id.; 50 C.F.R. § 402. 1 This process contains three major steps.
79. First, a federal agency proposing to take some action—termed the “action
agency”—must request information from the “consulting agency” concerning whether any
species that has been listed as endangered or threatened (or is proposed to be listed) is present in
the “action area.” 16 U.S.C. § 1536(c)(1); 50 C.F.R. § 402.12(c). In this case, the Forest Service
is the “action agency” and the Fish and Wildlife Service is the “consulting agency.”
80. The “action area” includes “all areas to be affected directly or indirectly by the
Federal action and not merely the immediate area involved in the action.” 50 C.F.R. § 402.02.
1
Citations to Title 50 of the Code of Federal Regulations are to the published 2021 version in
place at the time of the challenged formal consultation.
22
81. Second, if the Fish and Wildlife Service determines that listed species may be
present, the action agency must then determine whether the “action may affect listed species or
critical habitat.” Id. § 402.14(a). “Any possible effect, whether beneficial, benign, adverse, or of
an undetermined character,” satisfies the “may affect” standard. California ex rel. Lockyer v.
U.S. Dep’t of Agric., 575 F.3d 999, 1018–19 (9th Cir. 2009) (emphasis original) (quoting
Interagency Cooperation—Endangered Species Act of 1973, as Amended, 51 Fed. Reg. 19,926,
19,949 (June 3, 1986) (final rule)).
82. If the action may affect a listed species or critical habitat, the action agency must
engage in “formal consultation” with the Fish and Wildlife Service, 50 C.F.R. § 402.14(a),
unless the action agency further determines, with the written concurrence of the consulting
agency, “that the proposed action is not likely to adversely affect any listed species or critical
habitat,” id. § 402.14(b)(1) (emphasis added).
83. To determine whether formal consultation is required, the action agency may first
engage in “informal consultation” with the Fish and Wildlife Service. Id. § 402.13(a) (“Informal
consultation is an optional process . . . designed to assist the Federal agency in determining
whether formal consultation . . . is required.”).
84. An action agency also has the option of preparing a “biological assessment,”
either as an alternative to or in parallel with informal consultation, to determine whether listed
species or critical habitat “are likely to be adversely affected by the action.” Id. § 402.12(a);
51 Fed. Reg. at 19,948 (“[T]he biological assessment process may be conducted simultaneously
with informal consultation if desired by the [action] agency, or the [action] agency may choose
to undertake the biological assessment without any informal consultation.”).
23
85. If the informal consultation or the biological assessment concludes that the
proposed action is “not likely to adversely affect listed species or critical habitat” and the Fish
and Wildlife Service concurs with the action agency’s determination, then the consultation
process ends. 50 C.F.R. §§ 402.12(k)(1), 402.13(c), 402.14(b)(1).
86. If the informal consultation or the biological assessment concludes the proposed
action is likely to adversely affect listed species or critical habitat, the action agency must
proceed to the third major step of the consultation process: formal consultation with the Fish and
Wildlife Service. Id. § 402.14(a).
87. The action agency initiates formal consultation by submitting a written request to
the Fish and Wildlife Service. Id. § 402.14(c). That request must describe the proposed action
and its anticipated effects in “sufficient detail to assess the effects of the action on listed species
and critical habitat.” Id. § 402.14(c)(1)(i). It also must include “an analysis of any cumulative
effects,” as well as any “[i]nformation obtained by or in the possession of the [action] agency”
regarding “the listed species and designated critical habitat in the action area.” Id.
§ 402.14(c)(1)(iii)–(iv).
88. In submitting a request for formal consultation, the action agency must “provide
[the Fish and Wildlife Service] with the best scientific and commercial data available.” Id.
§ 402.14(d).
89. The action agency’s affirmative duty to provide the best available scientific data
to the consulting agency does not cease when a formal consultation request is submitted. Instead,
the action agency has a continuing “[r]esponsibility” to “provide [the Fish and Wildlife Service]
with the best scientific and commercial data . . . which can be obtained during the consultation.”
Id. (emphasis added).
24
90. The duty to “use the best scientific and commercial data available” applies to both
the Fish and Wildlife Service and the action agency throughout consultation. 16 U.S.C.
§ 1536(a)(2).
91. Once the Fish and Wildlife Service receives the action agency’s request for
formal consultation, the Fish and Wildlife Service must formulate its “biological opinion” on the
effects of the proposed action. 50 C.F.R. § 402.14(g)–(h); 16 U.S.C. § 1536(b)(3)–(4). The BiOp
prepared for the 2023 Forest Plan is a “programmatic” biological opinion, meaning it
“address[es] an agency’s multiple actions on a program, region, or other basis.” 50 C.F.R.
§ 402.02. The process of formulating a biological opinion also occurs in three primary steps.
92. First, the Fish and Wildlife Service must “[r]eview all relevant information
provided by the [action agency] or otherwise available.” Id. § 402.14(g)(1).
93. Second, the Fish and Wildlife Service must “[e]valuate” four different categories
of information for listed species and critical habitat: (1) the “current status” of the species or
habitat; (2) the “environmental baseline”; (3) the “cumulative effects” of non-federal actions; and
(4) the “effects of the [agency] action.” Id. § 402.14(g)(2)–(3).
94. The “environmental baseline” is “the condition of the listed species or its
designated critical habitat in the action area, without the consequences to the listed species or
designated critical habitat caused by the proposed action.” Id. § 402.02. This “includes the past
and present impacts of all Federal, State, or private actions and other human activities in the
action area, the anticipated impacts of all proposed Federal projects in the action area that have
already undergone formal or early section 7 consultation, and the impact of State or private
actions which are contemporaneous with the consultation in process.” Id.
25
95. “Cumulative effects” include “those effects of future State or private activities,
not involving Federal activities, that are reasonably certain to occur within the action area of the
Federal action subject to consultation.” Id.
96. “Effects of the action” are “all consequences to listed species or critical habitat
that are caused by the proposed action, including the consequences of other activities that are
caused by the proposed action.” Id. These effects “may occur later in time and may include
consequences occurring outside the immediate area involved in the action.” Id.
97. Third, the Fish and Wildlife Service must “[a]dd the effects of the action and
cumulative effects to the environmental baseline and[,] in light of the status of the species and
critical habitat, formulate the Service’s opinion as to whether the action is likely to jeopardize the
continued existence of listed species or result in the destruction or adverse modification of
critical habitat.” Id. § 402.14(g)(4).
98. “‘Jeopardize the continued existence of’ means to engage in an action that
reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both
the survival and recovery of a listed species in the wild by reducing the reproduction, numbers,
or distribution of that species.” Id. § 402.02. Recovery is defined as “improvement in the status
of listed species to the point at which listing is no longer appropriate.” Id.
99. If the Fish and Wildlife Service concludes that jeopardy is likely, it must develop
“reasonable and prudent alternatives” to the proposed action that “avoid the likelihood” of
jeopardy or explain why such alternatives do not exist. 16 U.S.C. § 1536(b)(3)(A); 50 C.F.R.
§§ 402.02, 402.14(h)(2).
100. If the Fish and Wildlife Service concludes that the action will not result in
jeopardy but may result in the “incidental take of listed species”—generally defined as the
26
harassment, harming, wounding, or killing of a listed species that results from, but is “not the
purpose of,” an “otherwise lawful activity,” 16 U.S.C. § 1532(19), 50 C.F.R. § 402.02—then it
generally must provide an “incidental take statement” with the biological opinion, 50 C.F.R.
§ 402.14(i)(1).
101. However, incidental take statements are not required for purely programmatic
biological opinions. Id. § 402.14(i)(6). That is because programmatic biological opinions
“approve[] a framework for the development of future action(s) that are authorized, funded, or
carried out at a later time, and any take of a listed species would not occur unless and until those
future action(s) are authorized, funded, or carried out and subject to further section 7
consultation.” Id. § 402.02.
102. Nevertheless, subsequent project-specific consultations do “not relieve the
[action] agency of the requirements for considering the effects of [a programmatic] action . . . as
a whole.” Id. § 402.14(c)(4). A programmatic action “still requires a programmatic consultation
to meet the requirements of section 7(a)(2),” even if specific projects developed under that
program “are subject to site-specific stepped-down, or tiered consultations where incidental take
is addressed.” Endangered and Threatened Wildlife and Plants; Regulations for Interagency
Cooperation, 84 Fed. Reg. 44,976, 44,997 (Aug. 27, 2019) (codified at 50 C.F.R. pt. 400).
103. Even after consultation is complete, the ultimate duty to ensure that an action does
not jeopardize listed species lies with the action agency. See Pyramid Lake Paiute Tribe v. U.S.
Dep’t of Navy, 898 F.2d 1410, 1415 (9th Cir. 1990); see also 50 C.F.R. § 402.15(a) (“Following
the issuance of a biological opinion, the [action] agency shall determine whether and in what
manner to proceed with the action in light of its section 7 obligations and the Service’s biological
opinion.”).
27
104. The action agency “cannot abrogate its responsibility to ensure that its actions will
not jeopardize a listed species” by simply deferring to the Fish and Wildlife Service’s biological
opinion—the action agency’s “decision to rely on a Fish and Wildlife Service biological opinion
must [also] not have been arbitrary or capricious.” Pyramid Lake, 898 F.2d at 1415.
105. An action agency’s reliance on a biological opinion is arbitrary or capricious if it
withholds from the Fish and Wildlife Service “material information in its possession,” Colo.
Env’t Coal. v. Off. of Legacy Mgmt., 302 F. Supp. 3d 1251, 1272 (D. Colo. 2018), or supplies
information it knows is “inaccurate,” Or. Nat. Desert Ass’n v. Tidwell, 716 F. Supp. 2d 982,
1004 (D. Or. 2010). When that is the case, the action agency is “not entitled to rely upon the
resultingly flawed BiOp.” Id. The action agency cannot put “garbage in[to]” a consultation and
reasonably conclude it will not get “garbage out.” Colo Env’t Coal., 302 F. Supp. 3d at 1272.
106. An action agency’s reliance on a biological opinion is also arbitrary or capricious
if the opinion “fail[s] to discuss [available] information that would undercut the opinion’s
conclusions,” Ctr. for Biological Diversity v. U.S. Bureau of Land Mgmt., 698 F.3d 1101, 1128
(9th Cir. 2012), or contains “legal error[s],” Wild Fish Conservancy v. Salazar, 628 F.3d 513,
532 (9th Cir. 2010). Examples of legal errors include “failing to articulate a rational connection
between [the] findings in the . . . [biological opinion] and its no jeopardy conclusion,” id., failing
to “adequately consider” all of the “relevant factors,” or submitting an “internally contradictory”
analysis, Pac. Coast Fed’n of Fishermen’s Ass’ns v. Gutierrez, 606 F. Supp. 2d 1122, 1190 (E.D.
Cal. 2008).
The Administrative Procedure Act
107. The APA creates a right to judicial review for any person wronged or aggrieved
by a final agency action when there is no other adequate remedy available. 5 U.S.C. §§ 702, 704.
28
108. Because the ESA does not specify a standard of review, courts review agency
compliance with the ESA under the APA. Appalachian Voices, 25 F.4th at 268.
109. Under the APA, a reviewing court shall “hold unlawful and set aside agency
action[s], findings, and conclusions” that the court finds to be “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law,” “in excess of statutory jurisdiction,
authority, or limitations,” or “without observance of procedure required by law.” 5 U.S.C.
§ 706(2).
110. Agency action is arbitrary and capricious, and must be set aside, where, among
other things: the agency “entirely failed to consider an important aspect of the problem, offered
an explanation for its decision that runs counter to the evidence before the agency, or is so
implausible that it could not be ascribed to a difference in view or the product of agency
expertise” or where the agency’s action is not based on a “reasoned analysis.” Motor Vehicle
Mfrs. Ass’n of U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42–43 (1983).
FACTUAL BACKGROUND
111. The Forest Service developed the first forest plan for the Nantahala and Pisgah
National Forests in 1987. The agency significantly amended that plan in 1994. That amendment
was prompted by widespread public opposition to heavy logging in ecologically sensitive areas.
Subsequently, the amended plan remained in place with only nonsignificant amendments until
2023, when the Forest Service finished the revised forest plan that was the subject of the ESA
consultation at issue in this litigation.
112. The 2023 Forest Plan calls for heavy logging on a much larger portion of the
Forests as compared to the previous plan. Specifically, the 2023 Forest Plan identifies an
additional 96,851 acres as “suitable for timber production”—a Forest Service term of art for
29
areas where “repeat scheduled entry is planned” to harvest “crops of trees . . . for industrial or
consumer use,” U.S. Forest Serv., Final Environmental Impact Statement for the Nantahala and
Pisgah National Forests’ Land Management Plan 3-567 (2023) [hereinafter “2023 FEIS”]—
bringing the total acreage open to timber production to 458,027 acres. Most of this expansion
occurs in old-growth forests, state-designated natural areas, and unroaded areas that have been
inventoried as potentially eligible for future wilderness designation.
113. In addition to expanding the footprint of timber production, the 2023 Forest Plan
calls for at least doubling current annual logging levels (its “Tier 1” objective) and allows for the
quintupling of annual logging levels (its “Tier 2” objective).
114. Tier 1 objectives were developed based on current Forest Service budgets and
capacity. Tier 2 objectives reflect outcomes dependent on additional funding or capacity.
115. Accommodating the timber sales necessary to meet the planned increases at either
tier will necessitate adding hundreds of miles of roads to the Forests over the next fifteen to
twenty years.
Listed Bat Species
116. During the plan revision process, the Forest Service worked with the Fish and
Wildlife Service to identify listed species and candidates for listing that might be affected by the
2023 Forest Plan.
117. In total, the Forest Service identified twenty-two listed species and four candidate
species for further study. U.S. Forest Serv., Biological Assessment 4 (Mar. 16, 2022) [hereinafter
“Final Assessment”]. Relevant here, the Forest Service determined that the 2023 Forest Plan may
affect four species of ESA-listed bats—northern long-eared bat, Indiana bat, Virginia big-eared
bat, and gray bat.
30
Northern Long-eared Bat
Figure 1: Northern long-eared bat. Michael Durham, Illinois Dep’t of Nat. Res.,
https://perma.cc/SPW6-95HS.
118. The northern long-eared bat is an endangered, medium-sized bat found in eastern
and central North America. These bats predominantly overwinter in caves and abandoned mines
before migrating to summer roosts during mid-spring. U.S. Fish & Wildlife Serv., Species Status
Assessment Report for the Northern long-eared bat (Version 1.1) 16–17 (2022) [hereinafter
“NLEB SSA”]. 2
119. Of all hibernating bats, the northern-long eared bat exhibits one of the shortest
migratory ranges, generally relying on suitable summer foraging and roosting habitat within
fifty-five miles of its hibernacula. Id. at 19.
2
Although there is a more recent Species Status Assessment Report for this species, Version 1.1
was the version available to the agencies during consultation.
31
120. Summer roosting habitat primarily consists of cavities and crevices in live and
dead trees. Id. at 17. Like many of the bats described below, northern long-eared bats show
fidelity to summer roosting and foraging areas, meaning that individuals return to the same
section of forest, and sometimes the same tree, year after year to feed and birth pups. Id. at 154.
121. Northern long-eared bats prefer foraging in “intact” “mature” forests, rather than
“fragmented habitat or areas that have been clear cut.” Id. at 18–19.
122. Studies have shown that these bats “consistently avoid foraging in or crossing
large open areas, choosing instead to use tree-lined pathways or small openings.” BiOp at 36.
123. Specifically, northern long-eared bats are associated with forest openings smaller
than two acres. Final Assessment at 34 fig.10.
124. Like many bats, northern long-eared bats produce only one pup per year; due to
this “low reproducti[ve] output,” the bat’s “ability to recover from . . . low abundances is
limited.” NLEB SSA at 69.
125. The northern long-eared bat was listed as threatened under the ESA on May 4,
2015. Endangered and Threatened Wildlife and Plants; Threatened Species Status for the
Northern Long-Eared Bat With 4(d) Rule, 80 Fed. Reg. 17,974 (Apr. 2, 2015). Following a court
ruling that its threatened listing was arbitrary and unlawful, the bat was instead listed as
endangered on November 30, 2022. Endangered and Threatened Wildlife and Plants;
Endangered Species Status for Northern Long-Eared Bat; 87 Fed. Reg. 73,488 (Nov. 30, 2022).
The listing became effective on March 31, 2023. See Delay of Effective Date, 88 Fed. Reg. 4908
(Jan. 26, 2023).
32
126. Both listings identified numerous threats to the northern long-eared bat, including
forest conversion, forest management activities, climate change, and human disturbance. 80 Fed.
Reg. at 17,989–94; 87 Fed. Reg. at 73,498.
127. During listing, white-nose syndrome was identified as the “primary threat” to the
northern long-eared bat. 80 Fed. Reg. at 18,000. This disease is caused by a fungal pathogen that
rouses bats during hibernation and rapidly depletes their fat and energy reserves. BiOp at 33.
128. Recent studies have found that since it emerged in 2007, white-nose syndrome
triggered population declines of 97–100% across 79% of the northern long-eared bat’s range.
NLEB SSA at 35.
129. Northern long-eared bat populations ravaged by white-nose syndrome will likely
deteriorate further: In 2022, the Fish and Wildlife Service predicted that the number of extant
northern long-eared bat winter colonies will decline to zero by 2050 and that range-wide
abundance will decline by 99% by 2060. Id. at 60.
33
Figure 2: Extant northern long-eared bat hibernacula in 2000 (left) and projected 2030 (upper
right) and 2060 (bottom right). NLEB SSA at 62.
130. The Fish and Wildlife Service has divided the northern long-eared bat’s habitat
into five geographical “representation units.” Id. at 25–26. The Eastern Hardwoods
representation unit—which encompasses the majority of the Forests—is predicted to persist the
longest, with one hibernaculum projected to endure through 2040. Id. at 69. However, absent
additional protective action, “[b]y 2060, all populations at all hibernacula are projected to be
extinct.” Id. at 61.
131. According to the Forest Service, “[s]everal known occupied [northern long-eared
bat] hibernacula occur on the Nantahala and Pisgah [National Forests], and summer maternity
habitat is widespread across the Forests; therefore, maintaining and restoring habitat within
34
today’s known (estimated) occupied range where it overlaps the Forests is critical to [the]
species’ persistence into the future.” Final Assessment at 51.
Indiana Bat
Figure 3: Indiana bats. Ann Froschauer, U.S. Fish & Wildlife Serv., https://perma.cc/H7LB-
3WS8.
132. The Indiana bat is an endangered, medium-sized bat native to the Eastern United
States. Like the northern long-eared bat, the Indiana bat overwinters in caves or mines and
emerges in mid-spring to migrate to summer roosting and foraging habitat. U.S. Fish & Wildlife
Serv., Indiana Bat (Myotis sodalis) Draft Recovery Plan: First Revision 42–44 (2007)
[hereinafter “Ibat Recovery Plan”].
35
133. “In summer, most reproductive [Indiana bat] females occupy roost sites under the
exfoliating bark of dead trees that retain large, thick slabs of peeling bark.” Id. at 7. “Roost trees
are typically within canopy gaps in a forest, in a fenceline, or along a wooded edge.” Id.
134. Indiana bat roosts are not found “in areas clearcut within the past 35 years,” id. at
76, or in “forests with open canopies (10–30%) or in old fields with less than or equal to 10%
canopy cover,” U.S. Forest Serv., Final Environmental Impact Statement for the Nantahala and
Pisgah National Forests’ Land Management Plan 3-287 (2022) [hereinafter “2022 FEIS”].
135. Indiana bat “[f]emales show high multi-annual fidelity to roost areas and may
migrate up to 673 km (418 miles), often from different hibernacula, to reach these colonies.”
U.S. Fish & Wildlife Serv., Indiana bat 5-Year Review: Summary and Evaluation 28 (2019)
(citation omitted) [hereinafter “Ibat 5-Year Review”].
136. “Maternity colonies of Indiana bats also appear to be faithful to their foraging
areas within and between years.” Ibat Recovery Plan at 48.
137. Indiana bats typically forage “in the subcanopy of forests with 60%–80% canopy
cover.” U.S. Fish & Wildlife Serv., Biological Opinion on the Effects of Implementing the
Nantahala and Pisgah Land and Resource Management Plan on Indiana Bat 16 (2000)
[hereinafter “2000 BiOp”].
138. While foraging, Indiana bats “consistently avoid crossing or foraging in large
open areas” greater than twenty acres, “choosing instead to use tree-lined pathways or small
openings.” BiOp at 30. This pattern holds true “despite [the] increased energy expenditures and
commuting distances.” Ibat Recovery Plan at 108.
139. Specifically, Indiana bats are associated with forest openings between a half-acre
and twenty acres in size. Final Assessment at 34.
36
140. Like most bats, “because Indiana bats produce only one pup per year, they may be
limited in their ability to rebound after population losses.” Ibat Recovery Plan at 109.
141. The Indiana bat was first listed as endangered under the precursor to the ESA—
the Endangered Species Preservation Act—in 1967. Native Fish and Wildlife, Endangered
Species, 32 Fed. Reg. 4001 (Mar. 11, 1967). At the time, reasons for listing included the
destruction/degradation of hibernation habitat; loss/degradation of summer habitat, migration
habitat, and swarming habitat; forest fragmentation; and human disturbance, among others. Ibat
Recovery Plan at 71–90.
142. Since then, white-nose syndrome has emerged as the primary threat to the Indiana
bat. Ibat 5-Year Review at 32.
143. Overall, the range-wide population of the Indiana bat declined by 19.2% from
2007 to 2019, largely due to impacts from white-nose syndrome. BiOp at 33.
144. Populations of the Indiana bat are predicted to deteriorate further in the coming
years. One federally funded study assuming “persistent mortality” from white-nose syndrome
estimated only 43,000 bats would remain by 2035, a decrease of 92% from the 2019 range-wide
estimate of 537,297 bats. Ibat 5-Year Review at 5, 22–23 (citing Wayne Thogmartin et al.,
White-nose Syndrome is Likely to Extirpate the Endangered Indiana Bat Over Large Parts of its
Range, 160 Biological Conservation 162, 167 (2013)).
145. The Indiana bat’s decline may be further exacerbated by the “increasing threat” of
climate change. Id. at 27.
146. But as the Indiana bat’s ranges shift in response to climate change, the
“northeastern and Appalachian regions of the [United States] have the potential to serve as
climate refugia for Indiana bats” (and northern long-eared bats). See BiOp at 35, 39.
37
147. The Fish and Wildlife Service has identified four distinct “recovery units” for the
Indiana bat. Recovery units are geographically or otherwise identifiable and are essential to
conserve genetic robustness, demographic robustness, or other necessary biological features for
the Indiana bat. Ibat Recovery Plan at 116 (2007).
148. While no Indiana bat hibernacula are known to occur in North Carolina, the
largest remaining hibernaculum in the Appalachian recovery unit, the White Oak Blowhole
Complex, is located a few miles west of the border with neighboring Tennessee. Ibat 5-Year
Review App’x A at 9. Bats from this complex are the “likely origin” of summer populations of
bats known to inhabit portions of the Nantahala National Forest in several western North
Carolina counties. 2000 BiOp at 28.
149. White-nose syndrome and other stressors have hit the White Oak Blowhole
population of Indiana bats particularly hard. In 2019, the Fish and Wildlife Service found that
Indiana bats at White Oak Blowhole—the same bats the Fish and Wildlife Service believes are
using the Nantahala as summer habitat—have declined by 94% since 2013. Ibat 5-Year Review
App’x A at 11 fig.6.
38
Figure 4: Indiana bat population trends at the White Oak Blowhole Complex. Ibat 5-Year
Review App’x A at 11 fig.6.
150. According to the Forest Service, “maintaining and restoring [Indiana bat] habitat
within today’s known (estimated) occupied range where it overlaps the Forests is critical to [the]
species’ persistence into the future.” Final Assessment at 53.
39
Virginia Big-eared Bat
Figure 5: Virginia big-eared bat. Virginia Bat Pros, https://perma.cc/8DSK-A6LV.
151. The Virginia big-eared bat is an endangered, medium-sized bat with a few
isolated populations in karst regions of the Appalachian Mountains. In 2019, the Fish and
Wildlife Service estimated that 19,574 bats persist at 10 major hibernacula across Kentucky,
North Carolina, Tennessee, Virginia, and West Virginia. U.S. Fish & Wildlife Serv., Virginia
big-eared bat 5-Year Review: Summary and Evaluation 7 (2019) [hereinafter “VBEB 5-Year
Review”].
152. Unlike the northern long-eared bat and the Indiana bat, the Virginia big-eared bat
“roosts in caves and cave-like habitats year-round.” BiOp at 50–51. But like these other bats,
Virginia big-eared bats exhibit “high” site fidelity for roosting and foraging habitat. Mylea
Bayless et al., Distribution and Status of Eastern Big-Eared Bats (Corynorhinus spp.), in
40
Symposium on the Conservation and Management of Eastern Big-Eared Bats 13, 20 (Susan
Loeb, Michael Lacki, Darren Miller eds., U.S. Forest Serv.) (2011).
153. Virginia big-eared bats prefer to roost in caves located in limestone karst regions
dominated by mature hardwood forests. Final Assessment at 44. This habitat is “largely absent
from the Forests,” apart from a few select areas described below. Id. at 45.
154. Virginia big-eared bat foraging “areas are generally located within a few miles
(less than 7 miles) of cave/mine roost sites” and must be “connected to the cave/mine site with
suitable travel corridors.” VBEB 5-Year Review at 10.
155. Virginia big-eared bats tend to forage for insects “near forest/edge interfaces and
along forested and riparian corridors in areas that have abrupt changes in vertical structure as
well as both vertical and horizontal surface area for gleaning.” Id. at 8.
156. However, Virginia big-eared bats do “not use clearcuts during foraging.” Id. at 9.
They also generally avoid crossing “major roads.” Id. Instead, the species prefers “open mature
forested habitats.” 2022 FEIS at 3-270.
157. Specifically, Virginia big-eared bats are associated with openings less than a half-
acre in size. Final Assessment at 34.
158. Like the bats described above, the Virginia big-eared bat is “long-lived, has low
reproductive rates, and requires larger than expected home range areas for its body size,” so it
“may be slow to recover from population losses.” VBEB 5-Year Review at 16.
159. The Virginia big-eared bat was listed as endangered under the ESA in 1979.
Endangered and Threatened Wildlife and Plants; Listing of Virginia and Ozark Big-Eared Bats
as Endangered Species, and Critical Habitat Determination, 44 Fed. Reg. 69,206 (Nov. 30,
1979). At the time, the Fish and Wildlife Service attributed its decline to its restricted range,
41
small population size, and human disturbance. Id. at 69,207. Though little was known about the
bat’s foraging needs, the 1984 Recovery Plan established that foraging habitat “must be
identified” and “restored as much as possible.” U.S. Fish & Wildlife Serv., Recovery Plan:
Ozark big-eared bat and Virginia big-eared bat 28 (1984).
160. In 2019, the Fish and Wildlife Service identified new and increasing threats to the
species, including impacts to foraging habitat from oil and gas development, road construction,
and other development. VBEB 5-Year Review at 16.
161. While the Forests occupy portions of eighteen counties in western North Carolina,
the current range of North Carolina’s population of Virginia big-eared bats overlaps with only
three of those counties (Avery, Caldwell, and Watauga). Final Assessment at 44.
Figure 6: Estimated current range of the Virginia big-eared bat in western North Carolina. Final
Assessment at 44.
42
162. The Fish and Wildlife Service has noted the “small size of [Virginia big-eared
bat] colonies” in the area overlapped by the Forests “is a concern,” and that populations in North
Carolina “may have restricted resiliency” and limited “adaptive capacity” given the bat’s “[l]ow
genetic diversity” in the area. VBEB 5-Year Review at 22.
163. Most of the Virginia big-eared bat’s genetic diversity in North Carolina is
concentrated at Black Rock Cliffs Cave at Grandfather Mountain State Park, one of the species’
last remaining major hibernacula range wide. The winter population of Virginia big-eared bats at
Black Rock Cliffs Cave has declined from a high of 376 bats in 2007 to 179 bats in 2018—a
52% decrease. Id. at 40.
164. Another nearby minor hibernaculum for the Virginia big-eared bat, Black Rock
Mystery Hole, has had a fluctuating population between four and seventy bats over a ten-year
period, with the most recent count in 2018 documenting forty-two bats. Id.
165. Each summer, some of the Virginia big-eared bat females wintering at the Black
Rock Cliffs hibernaculum move to a maternity colony near Beech Mountain, North Carolina.
N.C. Wildlife Res. Comm’n, Virginia Big-Eared Bat Wildlife Profile 2 (2016). Others remain at
the Black Rock Cliff Cave. VBEB 5-Year Review at 40.
166. Both the Black Rock hibernaculum and the Beech Mountain maternity colony are
“considered protected,” but “the areas where many of the secondary roosts and foraging areas are
concentrated are popular for second home development and are being rapidly developed,” which
could negatively “impact foraging habitat, travel corridors, and roosting locations.” BiOp at 52.
167. Some of the Virginia big-eared bat’s foraging and secondary roost areas also
overlap with the Forests, including large areas considered suitable for timber production in the
2023 Forest Plan.
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168. According to the Forest Service, “maintaining suitable foraging areas for [these
and other] nearby populations [of the Virginia big-eared bat] is critical to [the] species’
persistence into the future.” Final Assessment at 45.
Gray Bat
Figure 7: Gray bat. Adam Mann, N.C. Bat Working Group, https://perma.cc/TU4E-8YY6.
169. The gray bat is a large, endangered bat found in eastern North America. U.S. Fish
& Wildlife Serv., Gray bat 5-Year Review: Summary and Evaluation 7 (2009) [hereinafter “Gray
bat 5-Year Review”]. Gray bats are found in Alabama, Arkansas, Kentucky, Missouri,
Tennessee, and a few neighboring states, including North Carolina. Id. at 6.
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170. Within North Carolina, gray bats have been identified in eleven of the eighteen
counties spanned by the Forests. Final Assessment at 47.
171. Like Virginia big-eared bats, gray bats inhabit caves year-round and “show strong
philopatry [a tendency for an animal to return to the areas near their birthplace] to both
summering and wintering sites.” Gray bat 5-Year Review at 7. “Because of their highly specific
roost and habitat requirements, only about 5% of available caves are suitable for occupancy by
gray bats.” Id.
172. Gray bats “are highly dependent on aquatic insects,” so their foraging patterns are
“strongly correlated with open water of rivers, streams, lakes or reservoirs.” Id.
173. Though forest openings are more important to gray bats than Virginia big-eared
bats, gray bats still “tend to avoid” forest openings greater than ten acres. Final Assessment at
34.
174. The gray bat was listed under the Endangered Species Preservation Act in 1966.
80 Stat. 926; 16 U.S.C. § 668aa(c). It was listed as an endangered species under the ESA in
1976. Determination that Two Species of Butterflies are Threatened Species and Two Species of
Mammals are Endangered Species, 41 Fed. Reg. 17,736 (Apr. 28, 1976).
175. The reasons for listing the gray bat as endangered included human disturbance,
pesticides, sedimentation, “deforestation of areas near cave entrances and between caves and
rivers where gray bats feed,” impoundments, and cave flooding. U.S. Fish & Wildlife Serv.,
Gray bat Recovery Plan 5–8 (1982).
176. In 2012, the Fish and Wildlife Service confirmed the first instance of white-nose
syndrome in gray bats, which has the potential to seriously harm gray bat populations. BiOp at
49.
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Informal Consultation
177. After confirming the presence of the northern long-eared bat, Indiana bat,
Virginia big-eared bat, and gray bat in areas affected by the 2023 Forest Plan, the Forest Service
began informal consultation with the Fish and Wildlife Service in June 2021.
178. As part of the informal consultation, the Forest Service prepared a series of
biological assessments that it shared with the Fish and Wildlife Service.
179. The Forest Service’s biological assessments—and ultimately the Fish and
Wildlife Service’s BiOp—relied on outputs from two ecological models: the Ecological
Sustainability Evaluation (“ESE”) model and the Spectrum model.
The Ecological Sustainability Evaluation Model
180. The ESE model was the primary support for the Forest Service’s biological
assessments.
181. The ESE model is designed to assess ecological conditions relevant to species
diversity over time. U.S. Forest Serv., Draft Environmental Impact Statement for the Nantahala
and Pisgah National Forests’ Land Management Plan App’x C 3 (2020); Final Assessment at 11.
182. In general terms, the ESE model works by linking species to specific ecological
categories and then predicting how implementation of the forest plan will affect those categories.
The model assumes that improvements in category ratings over time will translate to better
outcomes for species.
183. For the revised plan, the ESE model focused on three primary categories:
“ecozones,” unique habitats, and species groups.
184. The first category included the ecological community types (“ecozones”) found
on the Forests. The Forest Service identified eleven different ecozones on the Forests, including,
for example, rich cove forests and spruce-fir forests.
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185. The second category comprised some unique habitats found within these larger
ecozones, such as “Caves and Abandoned Mines.”
186. The third and final category comprised different “species groups”—broad sets of
species with roughly similar habitat needs. For example, the “Forest Edge and Transitional
Associates” subgroup includes terrestrial species that rely on the ecological conditions found in
boundary habitat between different forest types or forest age classes, including, as most relevant
to the agencies’ analysis, the boundary—or “edge”—of a clearing created by logging.
187. Once these primary categories were set, the Forest Service linked individual
species to subgroups within these three categories. For example, all four endangered bat species
were linked to the dry-mesic oak forest ecozone, along with numerous other species as depicted
in Figure 8 below, including common but dissimilar species like white-tailed deer and wild
turkey. 2023 FEIS App’x C at 80, 82.
Figure 8: Graphic depiction of the three primary categories analyzed by the ESE model. As an
example, the eleven ecozone subgroups are depicted in the third column from the left, while
47
several example species linked to the “Dry-mesic oak forest” ecozone are shown in the column
on the far right.
188. All four listed bats—the northern long-eared bat, Indiana bat, Virginia big-eared
bat, and gray bat—were also linked to the “Forest Edge and Transitional Associates” species
group. 2023 FEIS App’x C at 82.
189. The “Forest Edge and Transitional Associates” species group also contained
numerous common species like ruffed grouse and white-tailed deer.
190. During Forest Service public comment periods, Conservation Groups pointed out
that lumping endangered species into categories with common species potentially skewed the
results of the agency’s analysis. For example, species that are adapted to large-scale openings,
like white-tailed deer, were lumped together with species that are highly intolerant of large-scale
openings, like the Virginia big-eared bat and the northern long-eared bat, as “Forest Edge
Associates” because all three species utilize edge habitat created by forest openings generally,
albeit of very different sizes. Figure 9, below, shows the association of Virginia big-eared,
northern long-eared, gray, and Indiana bats with openings of different sizes.
Figure 9: Listed bat associations with openings in the forest canopy. Final Assessment at 34.
Highlighted cells indicate associations with opening size.
191. The Fish and Wildlife Service itself raised this same concern: “By including large
groups of species in the ecozone analysis, we believe the [ESE] modeling has the potential to
48
diminish the actual effects of actions on some species.” U.S. Fish & Wildlife Serv., Comments
on Draft Forest Plan 11 (June 26, 2020) [hereinafter “FWS Comments on Draft Plan”].
192. After linking species to subgroups within each category, the Forest Service then
identified ecological indicators for the conditions it believed would “sustain” those subgroups in
the future.
193. To assess effects, the Forest Service input values for these indicators into the ESE
model for alternative plan scenarios. The values for some key indicators for the ESE model were
generated using outputs from another model—the Spectrum model, discussed more below.
194. The end result of the ESE model is a series of “element scores” categorized as
“poor,” “fair,” “good,” or “very good” based on thresholds for each indicator. 2023 FEIS App’x
C at 91.
195. The Forest Service’s ESE model is designed to assess element scores 10 and 50
years in the future.
196. If the element score moves “from a lower to a higher ranking” (i.e. improves from
“poor” to “fair”) or if the score improves “within the same ranking” (i.e. improves from a low-
scoring “fair” rating to a higher-scoring “fair” rating), the Forest Service assumes that all “plant
and animal species associated with the ecozone or species group would persist and potentially
even expand.” Final Assessment at 11.
197. “Conversely, declining overall scores over time indicate that [future conditions]
may not adequately protect ecosystem sustainability and the diversity of associated species.” Id.
198. The Forest Service’s ESE model predicted that conditions for most of the
ecozones, unique habitats, and species groups associated with listed bats will generally improve
over time if the 2023 Forest Plan is implemented. Id. at 33–58.
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199. As a specific example, the ESE model predicted that indicators for the “Forest
Edge and Transitional Associates” species group would improve. Those indicators were “[a]cres
of edge and transitional habitat” and “miles of forest edge.” Both indicators increase as total
acreage of edge increases, without accounting for the size of the opening creating that edge.
200. Because the amount of edge habitat was predicted to increase due to expanded
logging under the 2023 Forest Plan, the Forest Service concluded that conditions would improve
for a wide variety of species, including common species associated with edges adjacent to large
forest openings like wild turkey, field sparrow, and white-tailed deer, 2023 FEIS App’x C at 80,
82, 97, as well as listed bats that avoid and are harmed by large logging openings, Final
Assessment at 34.
The Spectrum Model
201. As noted above, the Forest Service relied on outputs from another model, known
as the Spectrum model, to use as inputs for indicators in the ESE model. The Spectrum model is
designed to predict how “disturbance” would affect forest conditions at ten-year time intervals
over a 200-year planning horizon. A “disturbance” is an event that “disturbs” the forest
community. Some disturbances, such as heavy “regeneration” logging (e.g., clearcutting), create
“young forest” by resetting forest age to zero.
202. The Spectrum model used four different forest-age groupings for its outputs:
young, mid-aged, late-aged, and old. The Spectrum model assumes that a forest will age, decade
by decade, unless acted on by an age-resetting disturbance.
203. Outputs from the Spectrum model served as inputs to the ESE model. 2023 FEIS
App’x C at 93–98 tbl.5. For example, the Spectrum model predicted the abundance of “young
forest habitat”—i.e., forests recently re-set to age zero—for each ecozone every decade for 200
50
years. The ESE model, in turn, used Spectrum’s 10- and 50-year outputs as indicators of future
conditions for that ecozone, with thresholds set by reference to the natural range of variation.
204. In drafts of environmental documents prepared under the National Environmental
Policy Act to support forest plan revision, the Forest Service assumed that only logging could
create young forest. In comments, Conservation Groups explained that the Spectrum model did
not account for the fact that the disturbances created by logging would be additive with
increasing levels of natural disturbance in the future due to climate change, resulting in excess
disturbance relative to the natural range of variation. Natural disturbances include events like
storms, wildfire, and insect or disease outbreaks.
205. In response, the Forest Service acknowledged that over the past fifty years, “the
rate of [natural] disturbance increased for each of the last four decades and more than doubled
between” 1970 and 2020, largely because of climate change. U.S. Forest Serv., Final Response
to Objection Issues and Instructions 197 (2023) [hereinafter “Response to Objections”].
206. Indeed, according to the Forest Service, natural disturbances like windstorms and
wildfires are predicted to increase even more in the future due to climate change. 2023 FEIS at 3-
19 to 3-20.
207. Instead of incorporating these predicted increases into its Spectrum model,
however, the model assumed that natural disturbances would decrease in the near term.
208. To reach that conclusion, the Forest Service reviewed data from the past fifty
years (1970–2019), and then assumed that decadal disturbance levels would repeat cyclically
over the 200-year planning horizon.
209. In other words, the Forest Service predicted that disturbance levels during the first
ten years of Plan implementation would be equivalent to the low levels documented between
51
1970 and 1980, that levels in the second decade would be equivalent to those between 1980 and
1990, and so on.
210. Figure 10, below, displays the agency’s approach to assessing levels of climate
change-driven disturbances on the Forests. The columns represent acres-per-decade of age-
resetting disturbance that the Forest Service fed into the Spectrum model. The dotted line
approximates disturbance levels in the future if disturbance trends continued linearly instead of
repeating, as the Forest Service assumed in the Spectrum model.
9000
8000
7000
6000
Acres Disturbed
5000
4000
3000
2000
1000
0
1970
1980
1990
2000
2010
2020
2030
2040
2050
2060
2070
2080
2090
2100
2110
Decade
Age-resetting disturbance (predicted) Age-resetting disturbance (actual)

Linear trend based on last five decades
Figure 10: The Forest Service’s future predicted natural disturbance levels on the Forests (blue
columns) compared to a linear extrapolation of past data (red dotted line).
211. By artificially setting back the disturbance clock to 1970, the Forest Service
dramatically underestimated the levels of natural disturbance over the twenty-year planning
period and 200-year planning horizon over which the plan’s effects are modeled. In other words,
52
as admitted by the Forest Service, its analysis “implies a substantial decline in the rate of
disturbance projected over the next thirty years, compared to what has been seen in the last
twenty.” Response to Objections at 197.
212. If the Forest Service had used realistic levels of natural disturbance, the Spectrum
model would have shown that the levels of logging authorized by the 2023 Forest Plan could not
be implemented sustainably without exceeding the natural range of variation for the occurrence
of young forest across the Forests.
213. To summarize, because the Spectrum model failed to account for increasing
natural disturbance, and, because the Spectrum model’s outputs were used as inputs in the ESE
model, the Forest Service’s analysis failed to show the extent to which the 2023 Forest Plan
would create too much young forest through logging when combined with natural disturbance, at
the expense of endangered bat habitat.
214. The ESE model’s predictions then became the primary support for the Forest
Service’s biological assessments, and later, the Fish and Wildlife Service’s BiOp.
Draft Biological Assessment
215. In November 2021, the Forest Service shared a draft biological assessment with
the Fish and Wildlife Service. U.S. Forest Serv., Draft Biological Assessment (Nov. 9, 2021)
[hereinafter “Draft Assessment”]. Among other things, the Draft Assessment concluded that the
implementation of the revised plan “may affect, but is not likely to adversely affect” the northern
long-eared bat, Indiana bat, Virginia big-eared bat, and gray bat. Id. at 48, 51, 60 (emphasis
added).
216. The Forest Service’s Draft Assessment argued that listed bats were not likely to
be adversely affected by the 2023 Forest Plan (and would therefore not require formal
consultation) because:
53
a. The ESE tool predicted that habitat conditions, “especially opening and
edge habitats across the Forests,” would improve over time. Id. at 47.
b. “The revised forest plan includes standards that limit opening size and
configuration, and while not specifically for bats, these constraints mitigate
the potential for openings that would be avoided by federally listed bats.”
Id. at 36. Specifically, the Forest Service pointed to plan standard TIM-S-
14, which “limits the size of harvest areas to not greater than 40 acres in
hardwood-dominated forest types and 80 acres in pine-dominated forest
types.” Id.
c. Certain plan components guiding cave closures and installation of
protective gates will help “minimize spread of white-nose syndrome.” Id. at
39.
d. The Draft Assessment included “[t]hree additional conservation measures
to protect and conserve forest-dwelling bats”: (1) a prohibition on
prescribed burning or tree removal during the bat active season when
temperatures are below 50° F, which would mitigate the effects of
“prescribed fire on maternity roosting bats”; (2) a prohibition on felling
trees during the active season “near known hibernacula and within Indiana
Bat designated critical habitat”; and (3) a requirement to consider use of
girdling or herbicide to create new snags (standing dead trees that are used
by listed bats) when removing small numbers of trees. Id. at 44, 58.
According to the Forest Service, these conservation measures were
54
“necessary to continue to move towards the long-term goal of species
persistence and recovery.” Id. at 58.
e. Road construction was “proposed in relatively small amounts.” Id. at 59.
f. Overall, “[a]ny potential effects [were] expected to be insignificant relative
to the amount of occupied and suitable habitat on the Forests.” Id. at 60.
“Suitable” habitat was defined to include all ecozones associated with each
listed bat across the Forests, regardless of whether the habitat is within the
known range for the relevant bat. For example, Virginia big-eared bat was
linked to the “Northern Hardwood Forest” ecozone, among others. For
purposes of evaluating impacts to Virginia big-eared bat, the ESE model
assumes adverse impacts or improvements to an acre of Northern
Hardwood Forest habitat in Watauga County—where Virginia big-eared
bats are present—was equivalent to adversely impacting or improving an
acre of Northern Hardwood Forest habitat in Clay County, even though
there are no Virginia big-eared bats in Clay County.
217. The Fish and Wildlife Service responded to the Forest Service’s Draft Assessment
with edits and comments on December 17, 2021. U.S. Fish & Wildlife Serv., Comments on Draft
Biological Assessment (Dec. 17, 2021) [hereinafter “FWS December 2021 Comments”]. Among
other things, Fish and Wildlife Service staff advised that:
a. The Forest Service’s reliance on plan standard TIM-S-14—which allows
40- and 80-acre clearcuts—was misplaced because some listed bats “would
avoid crossing openings this large.” Id. at 36. In fact, these openings were
55
far “larger than what’s listed [as appropriate] for most [listed bat species].”
Id.
b. Mitigating the spread of white-nose syndrome is only half the battle; “part
of mitigating [the] threat of [white-nose syndrome] is protecting survivors
from other threats,” including incidental take during timber harvest and
prescribed burning. Id. at 59. “[G]iven [the] toll [white-nose syndrome] has
taken” on some of the listed species, the Fish and Wildlife Service opined
that the loss of even one maternity colony from 2023 Forest Plan
implementation would be “a big deal.” Id. at 60.
c. It “[s]eems impossible to avoid [incidental] take during all of the tree
removal and burning planned with just” the three proposed conservation
measures. Id. at 44. Those measures were “[in]consistent with other
consultations of the same type” and were not “enough” to protect the
northern long-eared bat and Indiana bat. Id. Specifically, the failure to
include any protective measures “for maternity areas” “miss[ed] the mark.”
Id. at 44, 53. What’s more, the Forest Service had “not committ[ed] to
timing restrictions” for prescribed burns. Id. at 58.
d. The Forest Service’s predicted improvements in edge habitat may not
benefit all listed bat species since “some species may not use edges.” Id. at
35.
e. The Forest Service could not automatically assume that the proposed road
construction will necessarily have immeasurable impacts. Id. at 59. “Under
56
all action alternatives, additional road construction will take place.” FWS
Comments on Draft Plan at 10.
f. The Forest Service’s assertion that the acreage impacted by the Plan will be
“insignificant relative to the amount of occupied and suitable habitat on the
Forests” was “[n]ot applicable” to range-limited species like the Virginia
big-eared bat. FWS December 2021 Comments at 48.
218. In separate comments, the Fish and Wildlife Service also criticized the Forest
Service’s protocol for surveying listed species at the project level. Under the draft revised plan,
field surveys were only required when multiple conditions were met. For example, the proposed
project area had to have “a high potential for occupancy,” adequate population data had to be
unavailable, and information on the listed species had to “improve project design,” among other
conditions. The Fish and Wildlife Service opined that requiring all of these conditions be met to
trigger project-level surveys “is not consistent with guidelines as provided in section 7 of the
[ESA] when there is potential for impact to federally listed species,” and advised that satisfying
“[a]ny one of the conditions” listed in the revised plan should require field surveys. FWS
Comments on Draft Plan at 4.
Revised Biological Assessments
219. On January 18, 2022, the Forest Service issued a revised biological assessment.
U.S. Forest Serv., Biological Assessment (Jan. 18, 2022).
220. The Forest Service’s ESE model scores did not change materially between the
Draft Assessment and the January 2022 revised assessment. Unlike the Draft Assessment,
however, the January 2022 revised assessment concluded that the Plan was likely to adversely
affect the four listed bat species described above. Id. at 47, 50, 58.
57
221. Because the Forest Service now predicted adverse impacts to bats, the Forest
Service requested formal consultation with the Fish and Wildlife Service for these species.
222. Fish and Wildlife Service staff acknowledged the formal consultation request but
expressed concern that “many of [the agency’s] comments” on the Draft Assessment were left
“unaddressed” in the January 2022 revised assessment. Email from Rebekah Reid, Fish &
Wildlife Serv. Biologist, to Heather Luczak, Forest Serv. NEPA Coordinator (Jan. 27, 2022).
According to the Fish and Wildlife Service, it was “unclear if [these] comments were missed or
why they weren’t addressed.” Email from Rebekah Reid, Fish & Wildlife Serv. Biologist, to
Gary Kauffman, Forest Serv. Botanist (Jan. 28, 2022).
223. The Fish and Wildlife Service also expressed confusion about why the three
additional conservation measures—measures that limited prescribed burning and logging in the
bats’ active season and required the Forest Service to consider leaving snags when removing
small numbers of trees—were removed from the January 2022 revised assessment. Fish and
Wildlife Service staff had previously advised strengthening these conservation measures to
protect bats but now wondered if the Forest Service had “removed” them entirely because the
Forest Service “would have had to make major changes” to the revised plan if it kept these
measures. U.S. Fish & Wildlife Serv., Comments on Draft Biological Opinion 24 (May 13,
2022). In response, another Fish and Wildlife Service staff member confirmed that if the Forest
Service had retained these conservation measures “then the plan components [would] have [had]
to change,” so the “decision was made” by the Forest Service to drop the conservation measures
altogether. Id.
224. On February 11, 2022, the Forest Service sent a second revised draft assessment
to the Fish and Wildlife Service. There, the Forest Service attempted to bolster its reliance on
58
TIM-S-14 as a protective measure for bats, noting that “[p]ast management activities have
resulted in [openings] much smaller than” the 40- and 80-acre limits imposed by TIM-S-14. U.S.
Forest Serv., Biological Assessment 35 (Feb. 4, 2022). Specifically, the agency noted that the
historic average size of timber harvest units was around “12–20 acres”—which the Forest
Service asserted was “within the bounds” of the bats’ size preferences for forest openings. Id.
225. On March 4, 2022, the Fish and Wildlife Service returned another set of
comments to the Forest Service. U.S. Fish & Wildlife Serv., Comments on Biological
Assessment (Mar. 4, 2022) [hereinafter “FWS March 2022 Comments”]. The Fish and Wildlife
Service once again pushed back on the Forest Service’s continued reliance on TIM-S-14. Fish
and Wildlife Service staff stated that the draft “[s]eems to be saying this standard will minimize
impacts, yet” the 40- and 80-acre openings allowed by TIM-S-14 “are large openings for some
bats.” Id. at 35. The Fish and Wildlife Service agreed that while the Forest Service’s reference to
the average unit size for past timber harvests was “helpful,” it “isn’t the standard being used [in
the revised plan]. It’s just what’s been done in the past.” Id.
Final Biological Assessment
226. The Forest Service issued a final biological assessment on March 16, 2022.
227. Like the revised assessments, the Final Assessment finds that the revised forest
plan “may affect, and is likely to adversely affect Virginia big-eared bat, gray bat, northern long-
eared bat, [and] Indiana bat.” Final Assessment at 6.
228. Like the revised assessments, the Final Assessment also omits the three additional
conservation measures included in earlier drafts and discussed in paragraphs 216(d), 217(c), and
223, above.
59
229. Though the Final Assessment concludes that adverse effects are likely, it
consistently downplays the extent of those effects. As support, it points to the same ESE scores
described in the Forest Service’s drafts. See id. at 58.
230. In addition, the Final Assessment relies on many of the same factors the Fish and
Wildlife Service warned the Forest Service against during the drafting process, including the
following:
a. The Final Assessment continues to rely on TIM-S-14 to minimize effects of
clearcutting while acknowledging elsewhere that the listed bats are
associated with much smaller openings than those permitted by TIM-S-14.
Id. at 34–35.
b. The Final Assessment continues to rely on the Forest Service’s “[p]ast
management practices” to limit forest opening size rather than any plan
“constraint[]” on future activities. Id.
c. The Forest Service again assumes that increased logging levels that provide
“proportionally more edge habitats” will benefit all listed bats without
regard for the size of the openings associated with those edge habitats. Id.
at 34, 42.
d. Once more, the Final Assessment finds that road construction impacts can
be dismissed at the plan level because roads are “proposed in relatively
small amounts.” Id. at 57.
e. The Forest Service repeats its conclusion that “timing and temperature
restrictions” will mitigate the impacts of prescribed fire—even though it
dropped any “timing and temperature restrictions” from the Final
60
Assessment and no such constraints are included in the 2023 Forest Plan.
Id.
Administrative Comments and Objections
231. In June 2020, before formal consultation had even begun, Conservation Groups
submitted extensive comments on the Forest Service’s Draft Environmental Impact Statement
under the National Environmental Policy Act. These comments pointed out many of the
problems with the Spectrum and ESE models discussed above. In March 2022, while the Forest
Service and the Fish and Wildlife Service were engaged in formal Section 7 consultation,
Conservation Groups submitted administrative objections to the Forest Service’s revised plan as
permitted by NFMA pursuant to 36 C.F.R. § 219 Subpart B.
232. Conservation Groups’ comments and objections raised many inaccuracies with
the Forest Service’s environmental analyses of the revised plan, three of which are relevant here.
233. First, Conservation Groups pointed out that the logging levels permitted by the
2023 Forest Plan, combined with realistic levels of natural disturbance—as opposed to the levels
predicted assuming decadal disturbance levels will repeat on a fifty-year cycle, as discussed
above—were not sustainable and would create levels of young forest well beyond the natural
range of variation and what was suitable for listed bats. Because these young forest conditions
would primarily be in large openings created by logging, they would also result in a loss of
habitat for the listed bats that avoid large openings.
234. Second, Conservation Groups explained that the Forest Service erroneously
informed the Fish and Wildlife Service and the public that “there is unlikely to be a gain in
overall road miles” under the revised forest plan. 2022 FEIS at 3-497; 2023 FEIS at 3-521. This
assertion undergirds the conclusion that roads will not have appreciable effects on listed bats.
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235. Conservation Groups noted in their objection that this “no net gain” prediction
directly contradicts the agency’s data, which show the 2023 Forest Plan will result in the net
addition of hundreds of miles of roads to the Forests over the fifteen-to-twenty-year life of the
forest plan.
236. Roads fragment and degrade intact bat habitat. Roads also cause sedimentation of
waterways, reducing the quantity of aquatic insects relied on by foraging bats, particularly the
gray bat.
237. Third, Conservation Groups noted that the Forest Service had ignored the
cumulative effects of logging on nearby state and private lands that overlap with habitat on the
Forests for the four listed bat species.
238. In formal comments sent to the Forest Service in June 2020, Conservation Groups
provided data showing that logging occurs at a rate more than four times higher on surrounding
private lands and twice as high on surrounding state lands as compared to the Forests.
239. Logging on state and private lands near the Forests will have cumulative adverse
effects on listed bats using the Forests.
240. Nevertheless, the Forest Service’s Final Assessment makes no mention of the
relative rates of logging on state and private lands near the Forests. As noted below, the BiOp
adopts the same approach, noting that the effects of state and private land management on listed
bats on the Forests are “difficult to analyze” and declining to undertake that analysis.
241. Conservation Groups’ comments and administrative objections alerted the Forest
Service to information it should have used and errors it should have corrected during the Section
7 consultation process.
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242. Conservation Groups also provided a copy of their administrative objections to
the Fish and Wildlife Service during the consultation period.
Biological Opinion
243. The Section 7 consultation process culminated in the final BiOp issued on June 2,
2022.
244. The BiOp’s analysis of the revised plan largely tracks the Forest Service’s Final
Assessment.
245. The BiOp begins by providing some “context” for the revised plan, but it does not
define an ESA “action area.”
246. At one point, the BiOp describes the “assessment area” as the 18-county region
containing the Forests. BiOp at 3. On another occasion, the BiOp suggests its scope of analysis
extends to private inholdings “within” the Forests as well as the “surrounding” area. Id. at 60. At
other times, the BiOp suggests it is analyzing effects solely “on the Forests.” Id.
247. Next, the BiOp describes the current status of the listed bat species. In addition to
summarizing some of the life history traits described above, the BiOp generally describes some
of the current range-wide threats to the listed bats, including white-nose syndrome, forest
fragmentation, and the global effects of climate change. It also lists the recent range-wide
declines for each listed species.
248. In its environmental-baseline analysis, the BiOp recognizes that “[b]ats have been
documented” using the habitat on the Forests via “mist-net captures or acoustic surveys.” Id. at
54. And according to the Forest Service, “[s]everal known occupied hibernacula occur on the
Nantahala and Pisgah [National Forests].” Final Assessment at 51. The BiOp does not, however,
describe these occurrence data, hibernacula, or otherwise characterize which portions of the
Forests are actually used by range-restricted bat species. Instead, the BiOp adopts the ESE
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model’s approach and broadly assumes that the ecozones associated with each bat “are assumed
to be or contain suitable habitat for bats” no matter where they occur within the Forests, even if
the bats’ current ranges do not extend to those areas. Id. at 56.
249. For the northern long-eared bat and Indiana bat, the ESE model assumes that
suitable or potentially suitable habitat is found on “100% of [Forest Service] lands in the
Forests.” Id. For the Virginia big-eared bat and gray bat, the model assumes 42% of the Forests
contain suitable or potentially suitable habitat. See id.
250. The BiOp acknowledges that “all areas in a particular ecozone may not be
suitable” for these bats but asserts that in the “absences [sic] of more refined data, this is the best
available data.” Id.
251. In a similar vein, the BiOp declines to describe specific threats and population
trends in the affected area because it claims data regarding the “status and trends of bats on the
Forests are unavailable.” Id.
252. According to the Fish and Wildlife Service, because “there is no data to contradict
the expectation that status and trends on the Forests would be consistent with status and trends of
bats range-wide for the species,” summarizing and repeating the range-wide data reported in the
“status of the species” section suffices for an environmental-baseline analysis. Id. at 56–57.
253. Apart from a few references to local populations of Virginia big-eared bat, the
BiOp omits any discussion of monitoring or abundance data for listed bats in western North
Carolina, including data on the status and trends of local populations.
254. As the Forest Service itself recognized, such data exists. Final Assessment at 44
(“The [North Carolina Wildlife Resources Commission], [Fish and Wildlife Service], and other
partners (including the National Forests in North Carolina) have been monitoring bat populations
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in Western North Carolina for decades, and even more so since the discovery of white nose
syndrome in North Carolina.”); id. at 48 (“The [North Carolina Wildlife Resources
Commission], [Fish and Wildlife Service], and other partners have recently increased gray bat
inventory and monitoring.”); id. at 51 (“The [North Carolina Wildlife Resources Commission],
[Fish and Wildlife Service], and other partners (including the [Forest Service]) continue to
actively monitor bat populations across Western North Carolina.”)
255. In fact, one Fish and Wildlife Service staff member repeatedly questioned why
the BiOp failed to include available North Carolina–specific information for listed bats. U.S.
Fish & Wildlife Serv., Comments on Draft Biological Opinion 41 (May 9, 2022) (“Should we
include any NC specific data here or is this enough?”); see also Email from Sue Cameron, Fish
& Wildlife Serv. Biologist, to Rebekah Reid, Fish & Wildlife Serv. Biologist (May 9, 2022) (“I
was wondering if we should include some NC specific information for species” like the gray bat
and northern long-eared bat.).
256. After failing to assess available data regarding the baseline for listed bats in the
planning area, the BiOp shifts to discuss the “effects of the action.”
257. The BiOp’s discussion of the effects of the action is internally inconsistent.
258. To start, the BiOp acknowledges that the revised plan “will affect” “future
management decisions” as well as “subsequent project design.” BiOp at 58.
259. However, the BiOp concludes that the “direct and indirect effects from
implementation” of the revised plan—whether beneficial or negative—“are unknown and cannot
be evaluated.” Id.
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260. The BiOp then proceeds to “generally describe effects that may result from
project-level implementation,” such as the “temporary” clearing and fragmentation of roosting
and foraging habitat as well as “long-term” habitat improvement. Id. at 59–60.
261. The BiOp then reiterates, however, that the revised plan will have “no direct,
indirect, or beneficial effects on listed [bat] species or their habitats” id. at 59, despite also
disclosing “that the Revised Forest Plan is likely to adversely affect” the bats at issue in this
litigation, id. at 1.
262. The BiOp also dismisses the effects of road construction, echoing the Forest
Service’s conclusion that road construction is “proposed in relatively small amounts and could
affect bat habitat in very small, practically immeasurable, amounts.” Id. at 58.
263. Next, the BiOp briefly acknowledges potential cumulative effects including “state
highway maintenance and improvement projects, utility corridor construction and maintenance,
residential and recreational development and use, timber harvest, fuel reduction around private
developments, livestock grazing, and other actions.” Id. at 60.
264. The BiOp notes that cumulative effects “will continue and presumably increase as
[human] population densities rise and demand for development and maintenance increase.” Id.
265. Information was available during consultation to quantify or characterize these
cumulative effects, including data on local development affecting the Virginia big-eared bat, id.
at 52, road-widening projects, VBEB 5-Year Review at 16, forest loss on adjacent private lands,
2022 FEIS at 3-517 (predicting a 43% reduction in non-federal forest acres per capita in the
South by 2060), local effects of climate change, 2022 FEIS at 3-11 to 3-32, predicted population
declines of northern long-eared bat linked to white-nose syndrome, NLEB SSA at 60–64,
impacts to bats from energy development, id. at 37–40, and numerous other stressors.
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266. A draft of the BiOp recognized that trends on surrounding lands “would increase
the importance of quality habitat on [the Forests] as strongholds for bat persistence and
recovery.” U.S. Fish & Wildlife Serv., Draft Biological Opinion 58–60 (May 31, 2022). The
final BiOp, however, deletes this language and offers no further analysis of cumulative effects on
surrounding lands or how they relate to Forest Service actions in the 2023 Forest Plan. Instead,
the BiOp concludes that “at this time, specific future actions being considered or proposed that
could have cumulative effects with the Proposed Action are not known.” BiOp at 60.
267. The BiOp ultimately concludes that the revised plan is not likely to jeopardize the
continued existence of any of the listed bat species, meaning it is not expected “to reduce
appreciably the likelihood of both the survival and recovery of a listed species.” Id. The BiOp
includes no other discussion of impacts to species recovery.
268. To reach its “no jeopardy” conclusions, the Fish and Wildlife Service relies on
(1) “the magnitude of the project effects to reproduction, distribution, and abundance in relation
to the listed population[s]” of each listed bat species and (2) “information presented in the 2022
[revised biological assessment], the 202[2] EIS, correspondence during the consultation process,
information in our files, and informal discussions between the [Fish and Wildlife Service] and
the [Forest Service].” Id.
269. The BiOp acknowledges that implementation of the revised plan will cause
“short-term negative effects” to bats including “temporary changes” in listed bats’ “habitat
quantity and quality.” Id. at 58, 61. However, it notes that there is “no anticipated permanent loss
of forest habitat on the Forests,” i.e., that harvested forests will eventually grow back. Id. at 58.
270. The BiOp does not reconcile its predicted “temporary” and “short-term negative
effects” to bats and their habitats with the listed bats’ site fidelity and slow reproductive rates.
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Nor does the BiOp attempt to account for the future impacts of white-nose syndrome in its
jeopardy analysis. Ultimately, the BiOp does not provide an analysis explaining why listed bat
populations on the Forests are resilient enough to absorb and rebound from short-term negative
effects of logging and other activities called for by the 2023 Forest Plan.
271. Instead, the BiOp parrots the Final Assessment, noting that the Forest Service’s
ESE model “shows that conditions [for] these species should [ultimately] improve or stay the
same over time.” Id. at 59, 61.
2023 Forest Plan
272. The Forest Service published its 2023 Forest Plan in January 2023 following the
conclusion of Section 7 consultation and publication of the BiOp.
273. The Forest Service expressly relied on the BiOp to satisfy its substantive
obligations under the ESA. U.S. Forest Serv., Record of Decision for the Land Management Plan
68–70 (Feb. 2023) [hereinafter “ROD”].
274. The Forest Service ultimately rejected most of the recommendations the Fish and
Wildlife Service made during informal consultation to protect listed bats.
275. For example, the Forest Service declined to make any changes to plan standard
TIM-S-14. As noted above, that standard limits forest openings to 40 acres in hardwood-
dominated forest types and 80 acres in pine-dominated forest types.
276. As the Fish and Wildlife Service previously explained to the Forest Service, listed
bats avoid large forest openings allowed under that standard.
277. The Forest Service also declined to add to the 2023 Forest Plan any of the
additional conservation measures discussed in the Draft Assessment but omitted from the revised
assessments, Final Assessment, and BiOp, including timing and temperature restrictions for
timber harvest and prescribed fire.
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278. The Forest Service also declined to make changes to the plan standard that
triggers field surveys for listed species at the project level.
279. On July 25, 2023, Conservation Groups emailed and mailed written notice of the
ESA claims detailed below in Claims 7 and 8 to Secretary of Interior Debra Haaland, Secretary
of Agriculture Thomas Vilsack, U.S. Fish and Wildlife Service Director Martha Williams, U.S.
Forest Service Chief Randy Moore, and National Forests in North Carolina Forest Supervisor
James Melonas. See 16 U.S.C. § 1540(g)(2)(A)(i).
280. Secretary Haaland, Secretary Vilsack, Director Williams, and Chief Moore
received the hard-copy letters on July 27, 2023. Supervisor Melonas received the letter on July
26, 2023.
CLAIMS FOR RELIEF
Claim 1: The Fish and Wildlife Service’s Biological Opinion Violated the ESA and the APA
by Failing to Identify or Analyze an Appropriate “Action Area”
281. Conservation Groups incorporate by reference all preceding paragraphs.
282. ESA implementing regulations require the Fish and Wildlife Service to identify
an “action area” as the focus of its biological opinion, defined as “all areas to be affected directly
or indirectly by the Federal action and not merely the immediate area involved in the action.”
50 C.F.R. § 402.02.
283. Selecting an appropriate “action area” is crucial because inaccurately defining the
“action area” can “result[] in the exclusion of certain relevant impacts from the environmental
baseline” and ultimately “undermine the [ESA’s] requirement that agencies ‘insure’ that their
actions do not jeopardize the continued existence of endangered species.” Defenders of Wildlife
v. Babbitt, 130 F. Supp. 2d 121, 128–129 (D.D.C. 2001); see also Native Ecosystems Council v.
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Dombeck, 304 F.3d 886, 902 (9th Cir. 2002) (holding the Forest Service failed to establish an
“action area” consistent with the ESA).
284. The BiOp never defined the “action area.”
285. Instead, the BiOp inconsistently described the scope of its analysis and provided
no support for selecting any of these scopes of analysis as the action area. This inconsistent
scope led to an inconsistent effects evaluation and undermined the Fish and Wildlife Service’s
no-jeopardy conclusions.
286. The Fish and Wildlife Service’s failure to identify and justify an action area is
arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with law, in
violation of the ESA and APA. 5 U.S.C. § 706(2); see 16 U.S.C. § 1536(a)(2); 50 C.F.R.
§§ 402.02, 402.14.
by Failing to Analyze an Accurate Environmental Baseline
287. Conservation Groups incorporate by reference paragraphs 1 to 280.
288. A biological opinion must contain a “detailed discussion of the environmental
baseline of the listed species.” 50 C.F.R. § 402.14(h)(1)(ii).
289. The “environmental baseline” is defined as “the condition of the listed species or
its designated critical habitat in the action area, without the consequences to the listed species or
designated critical habitat caused by the proposed action.” Id. § 402.02. This includes “the past
and present impacts of all Federal, State, or private actions and other human activities in the
action area, the anticipated impacts of all proposed Federal projects in the action area that have
already undergone formal or early section 7 consultation, and the impact of State or private
actions which are contemporaneous with the consultation in process.” Id.
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290. Because a proper environmental baseline is focused on conditions in the action
area, the Fish and Wildlife Service cannot “pass off its summary of range-wide conditions and
threats as an action-area analysis.” Appalachian Voices, 25 F.4th at 272.
291. Nor can the agency neglect to discuss important factors affecting the
environmental baseline within that area. See id. at 272–73 (concluding the failure to discuss
“important stressors” to listed species in the action area was arbitrary and capricious).
292. In analyzing the environmental baseline, the Fish and Wildlife Service must
consider the best available scientific data. 16 U.S.C. § 1536(a)(2).
293. The Fish and Wildlife Service’s environmental baseline is flawed in at least two
ways.
294. First, the baseline analysis failed to consider available information on where bats
might actually be found in and around the Forests.
295. The Fish and Wildlife Service had access to several categories of spatially
discrete information, including available monitoring and abundance data from the North Carolina
Wildlife Resources Commission, the Forest Service, and the Fish and Wildlife Service itself, as
well as other widely available biological data—including several of the Fish and Wildlife
Service’s own studies, described above. Those data show that all four species of listed bats
currently occupy distinct portions of the Forests.
296. Instead of using available spatial information, the Fish and Wildlife Service
assumed that suitable habitat for northern long-eared bat and Indiana bat occurs on 100% of the
Forests and suitable habitat for Virginia big-eared bat and gray bat exists on 42% of the Forests.
BiOp at 56. The Fish and Wildlife Service then based its assessment of effects to bats on the
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existence of large swaths of “suitable” habitat despite having data showing that bats may only
occupy a fraction of this “suitable” habitat.
297. For example, Virginia big-eared bat only occurs in a narrow three-county area
overlapping the Forests. Instead of examining the effects of the 2023 Forest Plan within this area,
the Fish and Wildlife Service broadly assumed Virginia big-eared bat would benefit from habitat
improvements across the Forests—including in areas not occupied by Virginia big-eared bats.
298. By disregarding where bats are actually located, the Fish and Wildlife Service
obscured—and minimized—the 2023 Forest Plan’s effects on bats.
299. Second, the BiOp arbitrarily declined to analyze the status and trends of listed
species in the action area and instead attempted to “pass off its summary of range-wide
conditions . . . as [a baseline] analysis.” Appalachian Voices, 25 F.4th at 272.
300. According to the BiOp, information on the “status and trends of bats on the
Forests [is] unavailable.” BiOp at 56. And because “there is no data to contradict the expectation
that status and trends on the Forests would be consistent with status and trends of bats range-
wide for the species,” summarizing and repeating the range-wide or nationwide data reported in
the “status of the species” section sufficed for an environmental-baseline analysis. Id. at 56–57.
301. The Fish and Wildlife Service’s perfunctory analysis ignored readily available
local data that should have been incorporated into the environmental baseline. For example, as
noted above, the Fish and Wildlife Service and the North Carolina Wildlife Resources
Commission have “decades” of abundance and monitoring data for bat populations using the
Forests. Final Assessment at 44 (emphasis added).
302. In some cases, these local data show much more serious declines than the range-
wide figures cited by the Fish and Wildlife Service. Compare BiOp at 57 (noting Indiana bats
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declined 28% range-wide between 1995 and 2018), with Ibat 5-Year Review App’x A at 11
(noting Indiana bats at the White Oak Blowhole complex—the same bats using the Nantahala
National Forest as summer habitat—declined by 94% between 2013 and 2019).
303. In summary, the Fish and Wildlife Service had access to data on the status and
trends of listed bats using the Forests, as well as localized data on specific threats within and
around the Forests, but arbitrarily disregarded it. By ignoring this local data, the Fish and
Wildlife Service missed important trends that could have altered its jeopardy determination.
304. The Fish and Wildlife Service’s disregard of the best available scientific data and
its attendant failure to consider important aspects of the environmental baseline are arbitrary,
capricious, an abuse of discretion, and otherwise not in accordance with law, in violation of the
ESA and the APA. 5 U.S.C. § 706(2); see 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.14.
by Failing to Analyze Cumulative Effects
306. ESA implementing regulations require the Fish and Wildlife Service to
“[e]valuate” the “cumulative effects on the listed species.” 50 C.F.R. § 402.14(g)(3).
307. Cumulative effects are defined as “those effects of future State or private
activities, not involving Federal activities, that are reasonably certain to occur within the action
area of the Federal action subject to consultation.” Id. § 402.02.
308. Consideration of cumulative effects is critical to the Fish and Wildlife Service’s
jeopardy analysis, which is based on the effects of the action, cumulative effects, the
environmental baseline, and the status of the species and critical habitat. See id. § 402.14(g)(4).
Consideration of the environmental baseline and cumulative effects specifically helps ensure that
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“if a species is already speeding toward the extinction cliff” due to extrinsic factors, “[the]
agency [will] not press on the gas.” Appalachian Voices, 25 F.4th at 279.
309. Because the “ESA specifically requires a cumulative effects analysis,”
Greenpeace v. Nat’l Marine Fisheries Serv., 80 F. Supp. 2d 1137, 1149 (W.D. Wash. 2000), the
Fish and Wildlife Service “cannot abdicate its responsibility to evaluate” cumulative effects “by
labeling available information ‘uncertain,’” Nat. Res. Def. Council v. Kempthorne, 506 F. Supp.
2d 322, 360 (E.D. Cal. 2007). Yet that is precisely what the Fish and Wildlife Service did here.
310. Though the BiOp recognized that “[f]uture non-federal activities will occur within
and surrounding the action area,” it found that “specific future actions being considered or
proposed that could have cumulative effects with the Proposed Action are not known.” BiOp at
60 (emphasis added).
311. Despite the Fish and Wildlife Service’s assertion, there is a host of available
information regarding specific cumulative effects. Among other things, the Fish and Wildlife
Service had access to information regarding local development, road-widening projects, forest
loss on adjacent state and private lands, climate change, white-nose syndrome, and numerous
other stressors. These cumulative effects should have been considered in the BiOp.
312. Because the Fish and Wildlife Service disregarded available information on
cumulative effects, its BiOp ignored the best available scientific data and is arbitrary, capricious,
an abuse of discretion, and otherwise not in accordance with law, in violation of the ESA and the
APA. 5 U.S.C. § 706(2); see 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.14.
by Failing to Analyze Effects on Species’ Recovery
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314. The primary goal of the ESA is to “bring any endangered species or threatened
species to the point at which the measures provided pursuant to this chapter are no longer
necessary.” 16 U.S.C. § 1531(b), (c)(1); id. § 1532(3).
315. In other words, the ESA is not only designed to ensure listed species’ survival, but
also species recovery.
316. During Section 7 consultation, the Fish and Wildlife Service must determine
whether a proposed action “reasonably would be expected, directly or indirectly, to reduce
appreciably the likelihood of both the survival and recovery of a listed species.” 50 C.F.R.
§ 402.02 (emphases added).
317. “Recovery means improvement in the status of listed species to the point at which
listing is no longer appropriate.” Id.
318. An “agency is not permitted to resolve the difficulty of distinguishing between
survival and recovery by ignoring recovery needs and focusing entirely on survival.” Defenders
of Wildlife v. U.S. Dep’t of the Interior, 931 F.3d 339, 354 (4th Cir. 2019) (internal marks
omitted).
319. The BiOp contained no analysis of the 2023 Forest Plan’s effects on the listed bat
species’ recovery. It merely concluded, without explanation, that the Plan is not likely “to reduce
appreciably the likelihood of . . . recovery” for the four listed bats. BiOp at 60.
320. By ignoring effects on recovery, the BiOp failed to adequately consider the
important role the Forests may play in a climate-stressed future.
321. For example, in its “Status of the Species” section, the BiOp noted that the best
available scientific data has shown the “northeastern and Appalachian regions of the [United
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States] have the potential to serve as climate refugia for Indiana bats.” Id. at 35 (emphasis
added). The BiOp suggested the same is true for northern long-eared bats. Id. at 39.
322. Because the Nantahala and Pisgah National Forests are located in the Appalachian
region and contain large tracts of intact habitat with steep slopes, high elevations, and cooler
microclimates, they have the potential to serve as refugia for climate-stressed bats.
323. The Fish and Wildlife Service ignored the Forests’ potential to serve as climate
refugia in the agency’s jeopardy analysis. Instead of recognizing the special role the Forests may
play in bat recovery, the agency dismissed the effects of the 2023 Forest Plan based on the
“magnitude” of the Plan’s anticipated effects “in relation to” each listed bats’ larger population.
See id. at 60.
324. In other words, the BiOp assumed that the Forests are no more or less valuable
than other portions of the listed bats’ ranges, and that the 2023 Forest Plan’s effects will be a
drop in the range-wide bucket. That approach necessarily failed to recognize the critical role the
Forests may play for bats in a climate-stressed future.
325. The BiOp also failed to address bat behaviors that might influence the pace and
extent of recovery.
326. For example, the BiOp’s jeopardy analysis never accounted for the listed bats’
“extremely slow” reproductive rates, which will dramatically slow any recovery. Instead, it
assumed that any impact to bat habitat is “temporary” and that bats will eventually recover from
these “short-term negative effects” without discussing reproductive rates or site fidelity.
327. The BiOp’s failure to adequately consider species’ recovery and its disregard of
the best available scientific data is arbitrary, capricious, an abuse of discretion, and otherwise not
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in accordance with law, in violation of the ESA and the APA. 5 U.S.C. § 706(2); see 16 U.S.C.
§ 1536(a)(2); 50 C.F.R. § 402.14.
Because It Failed to Draw a Rational Connection Between Facts in the Record and Its No-
Jeopardy Conclusions
329. A biological opinion must “draw a rational connection” between facts in the
record and its ultimate jeopardy determinations. Sierra Club v. U.S. Dep’t of the Interior, 899
F.3d 260, 294 (4th Cir. 2018) (internal marks omitted).
330. The BiOp failed to draw a rational connection between its no-jeopardy
conclusions and multiple facts in the record.
A) The BiOp Failed to Draw a Rational Connection Between the Northern Long-eared
Bat’s and Indiana Bat’s Future Population Trends and Its No-Jeopardy
Conclusions
331. First, the BiOp failed to reconcile predicted declines in northern long-eared bat
and Indiana bat populations with its no-jeopardy conclusions.
332. According to the Forest Service, protecting habitat on the Forests for northern
long-eared bats and Indiana bats “is critical to [the] species’ persistence into the future.” Final
Assessment at 51–52, 58.
333. The BiOp recognized that the revised plan will have “negative effects” on bat
habitat, but concluded the 2023 Forest Plan is unlikely to jeopardize the survival or recovery of
the northern long-eared and Indiana bats because the Plan’s effects will be “short-term” or
“temporary.” BiOp at 58.
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334. But “[i]t is not enough that the habitat will recover in the future if there is a
serious risk that when that future arrives the species will be history.” Miccosukee Tribe of
Indians of Fla. v. United States, 566 F.3d 1257, 1271 (11th Cir. 2009).
335. The record shows that the northern long-eared bat and the Indiana bat have
experienced dramatic declines in recent years, primarily due to white-nose syndrome: northern
long-eared bat populations have declined by more than 90% range wide, and local populations of
Indiana bat have declined by 94%.
336. These declines are predicted to continue. As noted earlier, absent corrective
action, both bats, but especially the northern long-eared bat, are predicted to be at a severe risk of
extinction in the coming decades.
337. When species are teetering on the brink of extinction, “an agency may not take
action that deepens the jeopardy by causing additional harm.” Defenders of Wildlife, 931 F.3d at
353.
338. The BiOp acknowledged that the 2023 Forest Plan will have adverse effects on
listed bats. But it never addressed these adverse effects in the context of the northern long-eared
and Indiana bats’ predicted declines or severe extinction risks.
339. Instead, the BiOp arbitrarily concluded that a forest plan that will adversely affect
crucial bat habitat during an extinction crisis does not pose a jeopardy risk because that bat
habitat will recover eventually—long after northern long-eared bat and Indiana bat populations
are predicted to have been practically or literally extirpated from the landscape.
340. The Fish and Wildlife Service’s failure to reconcile its no-jeopardy conclusions
with (1) the northern long-eared and Indiana bats’ predicted future declines and (2) its own
predictions of short-term impacts from plan implementation disregarded the best available
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scientific data and is arbitrary, capricious, an abuse of discretion, and otherwise not in
accordance with law, in violation of the ESA and the APA. 5 U.S.C. § 706(2); see 16 U.S.C.
§ 1536(a)(2); 50 C.F.R. § 402.14.
B) The BiOp Failed to Draw a Rational Connection Between the Virginia Big-eared
Bat’s Spatially Limited Distribution and Its No-Jeopardy Conclusion
341. Second, the BiOp failed to reconcile the Virginia big-eared bat’s spatially limited
distribution with its no-jeopardy conclusion for that species.
342. As noted above, Virginia big-eared bats have one major hibernaculum in North
Carolina at Black Rock Cliffs Cave, and another minor hibernaculum at nearby Black Rock
Mystery Hole. Some bats form a maternity colony at Black Rock Cliffs Cave, while others move
a few miles away to Beech Mountain.
343. The Black Rock Cliffs Cave hibernaculum is directly adjacent to the Pisgah
National Forest.
344. Because Virginia big-eared bats only forage a few miles from their caves, the
Forest Service recognized that “maintaining suitable foraging areas for [these] nearby
populations is critical to [this] species’ persistence into the future.” Final Assessment at 45.
345. As described above, during informal consultation, the Fish and Wildlife Service
admonished the Forest Service that impacts to Virginia big-eared bat habitat could not be
dismissed as “insignificant relative to the amount of occupied and suitable habitat on the Forests”
because the species “has a very restricted range.” FWS December 2021 Comments at 48.
346. Nevertheless, the BiOp erroneously assumed that the Virginia big-eared bat is not
range limited, but in fact has suitable habitat on 42% of the Forests. BiOp at 56. Because it
concluded that abundant unoccupied potential habitat exists elsewhere, the BiOp mistakenly
dismissed adverse effects to occupied Virginia big-eared bat habitat as inconsequential. Id. at 60
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(dismissing impacts “based on the magnitude of the project effects to reproduction, distribution,
and abundance in relation to the listed population”).
347. The BiOp never assessed the effects of the 2023 Forest Plan specifically in the
narrow three-county area where the Virginia big-eared bat is actually located.
348. Neither the Fish and Wildlife Service nor the Forest Service asserted that Virginia
big-eared bats will move into the “potentially suitable” but currently unoccupied habitat outside
the three-county area where they currently occur. Other western North Carolina counties
generally lack the limestone karst geology the Virginia big-eared bat requires for its hibernacula.
349. In sum, the BiOp concluded that adverse effects to habitat currently occupied by
Virginia big-eared bat will not jeopardize the species due to the presence of large amounts of
potential habitat in other areas of the Forests not currently occupied by Virginia big-eared bat—
areas that are likely inappropriate for Virginia big-eared bat colonization and persistence.
350. The Fish and Wildlife Service’s failure to reconcile its no-jeopardy conclusion for
the Virginia big-eared bat with (1) its own previous statements regarding the bat and (2) the bat’s
very restricted range disregarded the best available scientific data and is arbitrary, capricious, an
abuse of discretion, and otherwise not in accordance with law, in violation of the ESA and the
APA. 5 U.S.C. § 706(2); see 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.14.
C) The BiOp Failed to Draw a Rational Connection Between the Listed Bats’ Site
Fidelity and Its No-Jeopardy Conclusions
351. Third, the BiOp failed to reconcile the listed bats’ strong site fidelity with its no-
jeopardy conclusions.
352. According to the BiOp, the 2023 Forest Plan’s adverse impacts to bat habitat can
be dismissed as “short-term” and “temporary” because “there is no anticipated permanent loss of
80
forest habitat on the Forests.” BiOp at 58. In other words, the trees the bats rely on for roosting,
foraging, and commuting will eventually grow back.
353. The BiOp’s conclusion failed to account for the listed bats’ site fidelity. As
described above, each of the listed bats exhibit site fidelity or philopatry, meaning they return to
the same location to roost and forage. For some species, such as the northern long-eared bat, this
fidelity extends to individual roost trees.
354. The Fish and Wildlife Service previously recognized that, due to this site-fidelity
behavior, the loss of traditional roosting habitat “places additional stress on pregnant females at a
time when fat reserves are low or depleted and they are already stressed from energy demands of
migration and pregnancy.” Ibat Recovery Plan at 75.
355. The Fish and Wildlife Service has also acknowledged that when tree clearing
eliminates traditional foraging habitat for listed bat species with high site fidelity, those “bats are
forced to seek new habitat and expand their foraging range, potentially reducing foraging success
and exposing bats to increased predation and competition.” Id. at 109.
356. The BiOp’s jeopardy analysis never discussed how the 2023 Forest Plan’s effects
may be influenced by the bats’ site fidelity. Instead, it dismissed impacts because trees will
eventually grow back—which failed to account for listed bats’ philopatric behavior and the
adverse effects bats will experience while searching for new habitat in the meantime.
357. The Fish and Wildlife Service’s failure to reconcile listed bats’ philopatric
behavior with its no-jeopardy conclusions disregarded the best available scientific data and is
arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with law, in
violation of the ESA and the APA. 5 U.S.C. § 706(2); see 16 U.S.C. § 1536(a)(2); 50 C.F.R.
§ 402.14.
81
D) The BiOp Failed to Draw a Rational Connection Between the Listed Bats’
Avoidance of Large Forested Openings Allowed by the 2023 Forest Plan and Its No-
Jeopardy Conclusions
358. Fourth, the BiOp did not explain how a revised plan that will allow large openings
will “improve” conditions for bats that avoid and are harmed by large openings.
359. According to the Forest Service, forest opening sizes will be constrained by the
2023 Forest Plan standard TIM-S-14, which “limits the size of harvest areas to not greater than
40 acres in hardwood-dominated forest types and 80 acres in pine-dominated forest types.” Final
Assessment at 35. In addition, the Forest Service contended that past harvesting practices show
that harvest sizes will be much more limited than those allowed by TIM-S-14.
360. During consultation, the Fish and Wildlife Service rejected both rationales, noting
that the openings permitted by TIM-S-14 were far “larger than what’s listed for most [species],”
and that past practice “isn’t the standard being used” but rather is “just what’s been done in the
past.” FWS March 2022 Comments at 35.
361. As noted above, the Virginia big-eared bat and northern long-eared bat are
associated with forested openings between 0–0.5 acres and 0–2 acres, respectively, while the
gray bat and Indiana bat are associated with openings smaller than ten acres and twenty acres,
respectively. These small openings are much less than the 40- and 80-acre clearcuts permitted by
TIM-S-14.
362. Despite its earlier critique, and despite the best available scientific data on listed
bats’ opening preferences, the Fish and Wildlife Service’s BiOp relied on the Forest Service’s
ESE tool to conclude that conditions in all ecozones will improve, to the benefit of listed bats,
because of an increase in the quantity of openings created by logging—regardless of opening
size—and that the bats will further benefit from the “edge” habitat surrounding those openings.
82
The Fish and Wildlife Service never attempted to explain this departure from its earlier position
or illuminate how TIM-S-14 will lead to forest openings appropriately sized for bats.
363. The Fish and Wildlife Service’s failure to reconcile its no-jeopardy conclusions
with (1) the revised plan’s allowance of large openings and (2) listed bats’ avoidance of these
large openings—as recognized in its earlier critique—disregarded the best available scientific
data and is arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with
law, in violation of the ESA and the APA. 5 U.S.C. § 706(2); see 16 U.S.C. § 1536(a)(2);
50 C.F.R. § 402.14.
Because It Failed to Add the Effects of the Action to the Environmental Baseline and
Cumulative Effects and Consider Those Aggregate Effects in Light of the Current Status of
the Species
365. To determine whether an agency action may jeopardize listed species, the Fish
and Wildlife Service must “[a]dd the effects of the action and cumulative effects to the
environmental baseline and in light of the status of the species and critical habitat, formulate the
Service’s opinion as to whether the action is likely to jeopardize the continued existence of [the]
listed species.” 50 C.F.R. § 402.14(g)(4).
366. In other words, the Fish and Wildlife Service must view the action “against the
aggregate effects of everything that has led to the species’ current status and, for non-Federal
activities, those things [reasonably certain] to affect the species in the future.” U.S. Fish &
Wildlife Serv. & Nat’l Marine Fisheries Serv., Endangered Species Consultation Handbook 4-35
(1998).
367. As noted above, the BiOp’s jeopardy analysis failed to consider numerous
relevant factors, including fine-scale information on species’ declines in and around western
83
North Carolina; cumulative effects; bats’ limited distributions across the Forests; bats’ avoidance
of large openings; bats’ site fidelity; bats’ low reproductive rates; the compounding and
increasing effects of climate change; the potential for the Forests to serve as future climate
refugia; impacts to species recovery; the compounding effects of white-nose syndrome; and
several bats’ severe future extinction risks, among other factors.
368. The BiOp failed to consider the effects of the 2023 Forest Plan in light of these
aggregate effects.
369. By omitting these factors and narrowly focusing on a few potential effects of the
2023 Forest Plan alone, the BiOp inappropriately “conduct[ed] the bulk of its jeopardy analysis
in a vacuum.” Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 524 F.3d 917, 929 (9th Cir.
2008).
370. The Fish and Wildlife Service’s resulting no-jeopardy findings disregarded the
best available scientific data and are arbitrary, capricious, an abuse of discretion, and otherwise
not in accordance with law, in violation of the ESA and the APA. 5 U.S.C. § 706(2); see
16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.14.
Claim 7: The Forest Service Violated the ESA by Failing to Provide the Fish and Wildlife
Service with the Best Available Scientific Data
372. During ESA consultation, both the action agency—here, the Forest Service—and
the consulting agency—here, the Fish and Wildlife Service—“shall use the best scientific and
commercial data available.” 16 U.S.C. § 1536(a)(2).
373. The action agency’s duty to supply the Fish and Wildlife Service with the best
available scientific data extends throughout the consultation process. 50 C.F.R. § 402.14(d). The
action agency may not fail to turn over “[i]nformation obtained by or in the possession of the
84
[action] agency” regarding “the listed species and designated critical habitat in the action area.”
Id. § 402.14(c)(1)(iii)–(iv).
374. During consultation, the Forest Service failed to supply the Fish and Wildlife
Service with the best available scientific data in at least three different ways.
A) The Forest Service Provided Inaccurate Information About Future Forest

Disturbance to the Fish and Wildlife Service
375. To assess how the 2023 Forest Plan would affect bat habitat in the future, the
Forest Service used its Spectrum model to assess the effects of the revised plan and effects of
future natural disturbances like wildfires, wind events, and insect infestations. The Forest Service
then provided that information to the Fish and Wildlife Service to inform its BiOp.
376. The Spectrum model severely underestimated the effect of natural disturbances on
forest age and bat habitat.
377. Specifically, although the data available to the Forest Service show that natural
disturbance is increasing due in large part to climate change, the Spectrum model assumes that
disturbance during the life of the 2023 Forest Plan will dramatically decrease.
378. This assumption is statistically and scientifically unsupported and contradicts
other portions of the 2023 Forest Plan where the Forest Service discloses that climate change
will likely result in increased natural disturbances. See also Appalachian Voices, 25 F.4th at 277
(“[T]he one thing we know about climate change [is] that it will get worse over time[.]”).
379. The Forest Service’s failure to communicate accurate information about expected
changes to listed bat habitat undermined the Fish and Wildlife Service’s analysis, especially for
listed bats that need mature, undisturbed forest such as the northern long-eared bat and Virginia
big-eared bat.
85
380. Conservation Groups pointed out the flaws in the Spectrum model to the Forest
Service while formal consultation was ongoing. Upon information and belief, the Forest Service
did not disclose these modeling flaws to the Fish and Wildlife Service during consultation.
381. By providing inaccurate information to the Fish and Wildlife Service and failing
to inform the Fish and Wildlife Service of this error when alerted to it during consultation, the
Forest Service violated the requirement to provide and use the best available scientific data, in
contravention of the ESA. See 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.14.
B) The Forest Service Erroneously Informed the Fish and Wildlife Service that Road
Construction will be Negligible
382. The Forest Service provided information to the Fish and Wildlife Service
indicating that “there is unlikely to be a gain in overall road miles” during 2023 Forest Plan
implementation. The BiOp adopted this conclusion wholesale, stating that road construction is
“proposed in relatively small amounts and could affect bat habitat in very small, practically
immeasurable, amounts.” BiOp at 58.
383. The Forest Service provided no reasoned basis for its “no net gain” in road miles
conclusion. That conclusion directly contradicts the agency’s data, which show the 2023 Forest
Plan will result in the net addition of hundreds of miles of roads to the Forests over the fifteen-to-
twenty-year life of the forest plan.
384. The Forest Service’s unsupported representations that the effects of road
construction would be negligible and that “there is unlikely to be a gain in overall road miles”
during the life of the 2023 Forest Plan were material to the Fish and Wildlife Service’s analysis
and conclusions in the BiOp. The Fish and Wildlife Service has recognized that forest
fragmentation from road construction negatively affects the Indiana bat, northern long-eared bat,
86
and Virginia big eared bat. Sedimentation caused by additional road construction will also
degrade water quality and foraging habitat for the gray bat.
385. The Forest Service’s failure to provide to the Fish and Wildlife Service accurate
information about the extent and effects of roadbuilding under the 2023 Forest Plan violated the
requirement to provide and use the best available scientific data, in contravention of the ESA.
See 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.14.
C) The Forest Service Failed to Present the Fish and Wildlife Service with Available
and Material Information on Logging on State and Private Lands
386. The Forest Service failed to provide the Fish and Wildlife Service with reliable
information regarding logging rates on state and private lands during the consultation process.
387. Conservation Groups provided the Forest Service with data showing that logging
rates are more than four times as high on surrounding private lands and twice as high on
surrounding state lands as on the Forests. Upon information and belief, the Forest Service did not
share this information with the Fish and Wildlife Service. As a result, the Fish and Wildlife
Service’s analysis declined to consider cumulative effects on surrounding lands, dismissing them
as “difficult to analyze.”
388. Logging on state and private lands will have cumulative adverse effects on listed
bats using the Forests.
389. The Forest Service’s failure to provide the Fish and Wildlife Service with
information in its possession related to logging rates on state and private lands violated the
requirement to provide and use the best available scientific data, in contravention of the ESA.
See 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.14.
87
Claim 8: The Forest Service Violated the ESA by Relying on an Unlawful Biological
Opinion, Thus Failing to Ensure Against Jeopardy to the Listed Bat Species
391. The ESA requires the Forest Service to ensure that “any action authorized,
funded, or carried out by such agency . . . is not likely to jeopardize the continued existence of
any endangered species.” 16 U.S.C. § 1536(a)(2).
392. The 2023 Forest Plan is an action “authorized, funded, or carried out” by the
Forest Service.
393. The Forest Service improperly relied on the Fish and Wildlife Service’s BiOp in
two ways in its final record of decision. ROD at 68–70.
394. First, because the Forest Service supplied inaccurate and incomplete information
to the Fish and Wildlife Service during the consultation process, the Forest Service cannot
reasonably rely on the resulting BiOp to ensure that the 2023 Forest Plan would not jeopardize
the continued existence of the northern long-eared bat, Indiana bat, Virginia big-eared bat, and
gray bat.
395. Second, because the BiOp’s analysis of impacts to listed bat species is facially
and legally flawed, the Forest Service cannot reasonably rely on it to ensure that the 2023 Forest
Plan would not jeopardize the continued existence of the northern long-eared bat, Indiana bat,
Virginia big-eared bat, and gray bat.
396. The Forest Service failed to meet its substantive duty to ensure that its actions are
not likely to jeopardize the continued existence of the northern long-eared bat, Indiana bat,
Virginia big-eared bat, and gray bat, in violation of Section 7 of the ESA. 16 U.S.C § 1536(a)(2).
88
PRAYER FOR RELIEF
Plaintiffs respectfully request that the Court:
A. DECLARE that the U.S. Forest Service violated the Endangered Species Act in
the respects set forth above;
B. DECLARE that the U.S. Fish and Wildlife Service violated the Endangered
Species Act and Administrative Procedure Act in the respects set forth above;
C. VACATE and set aside the U.S. Fish and Wildlife Service’s programmatic
Biological Opinion dated June 2, 2022;
D. ENJOIN Defendants from relying on the challenged Biological Opinion until they
have complied with the Endangered Species Act and the Administrative Procedure Act;
E. AWARD Plaintiffs their reasonable costs, fees, and expenses, including attorney’s
fees, associated with this litigation; and
F. GRANT Plaintiffs such further and additional relief as the Court may deem just
and proper.
Respectfully submitted, this the 18th day of April, 2024.
/s/ Spencer Scheidt

Spencer Scheidt
N.C. Bar No. 57078
SOUTHERN ENVIRONMENTAL LAW CENTER
48 Patton Ave, Suite 304
Asheville, NC 28801-3321
Telephone: 828-258-2023
Facsimile: 828-258-2024
sscheidt@selcnc.org
/s/ Alyson Merlin

Alyson Merlin
N.C. Bar No. 58223
89
Telephone: 828-258-2023
Facsimile: 828-258-2024
amerlin@selcnc.org
/s/ Sam Evans

Sam Evans
N.C. Bar No. 44992
Telephone: 828-258-2023
Facsimile: 828-258-2024
sevans@selcnc.org
Attorneys for Conservation Groups
90

Defenders of Wildlife, Et Al. v. USFS, Et Al.

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Defenders of Wildlife, Et Al. v. USFS, Et Al.

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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

produced through that consultation process should be vacated.

Case 1:24-cv-00118 Document 1 Filed 04/18/24 Page 1 of 90

and wildlife, including endangered bats.

limits to mitigate negative impacts.

[the] species’ persistence into the future.”

jeopardize endangered bats.

occupied bat habitat.

be no “gain in overall road miles” across the Forests.

was necessary but nevertheless did not require during consultation.

because it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with

consultation that complies with the law.

JURISDICTION AND VENUE

259, 261 (4th Cir. 2011).

16. As required by ESA Section 11, 16 U.S.C. § 1540(g)(2)(A)(i), Conservation

Defendants’ violations are continuing.

17. Venue is proper in this District under 28 U.S.C. § 1391(e)(1)(B) because

capacities, no real property is involved in this action, and Plaintiff MountainTrue is

headquartered in the District.

Plaintiff Conservation Groups

level” decisions and “project-level” decisions.

and their habitats.

21. Plaintiff Defenders of Wildlife (“Defenders”) is a national nonprofit organization

headquartered in Washington, D.C. Founded in 1947, Defenders is dedicated to the protection of

robust, well-distributed populations is a central part of Defenders’ conservation vision.

searching for rare and listed species, including bats.

these projects begin.

staff treasure and work to protect.

new formal consultation.

29. MountainTrue is a nonprofit corporation with its principal office in Asheville,

observe rare and threatened species, including bats.

32. MountainTrue’s members’ scientific, aesthetic, recreational, and spiritual interests

organizational harm on MountainTrue. MountainTrue invests significant time and resources

plan standards and guidelines to protect bats from these projects.

and staff treasure and work to protect.

37. Sierra Club is a nonprofit, grassroots organization founded in 1892 to explore,

species, including bats.

final revised forest plan for the Forests.

BiOp—lacks meaningful commitments to recover bat populations or even to mitigate harm to

members and the public about those effects.

Center for Biological Diversity

attracted more than 400 participants.

Wildlife Service’s flawed BiOp.

staff treasure and work to protect.

United States Forest Service

acres in the Nantahala and Pisgah National Forests in North Carolina.

species or result in the destruction or adverse modification of their critical habitat.

Forest Supervisor James Melonas

both. Mr. Melonas is sued in his official capacity.

United States Fish and Wildlife Service

that are the subject of this action.

Director Martha Williams

sued in her official capacity.

preparation and approval of the BiOp challenged in this action.

The National Forest Management Act

fish, and wilderness. 16 U.S.C. §§ 528, 529, 1604(e).

588, 90 Stat. 2949 (1976).

funding” available, to revise outdated forest plans).

forest plan through individual projects.

65. Forest plans typically identify “management areas.” Id. § 219.7(d). A

component that is a “mandatory constraint on project and activity decisionmaking.” Id.

§ 219.7(e)(1)(iii). Second, a “guideline” is “a constraint on project and activity decisionmaking

development of these components occurs in two steps.