Heartwood v. Dirk Kempthorne

The Honorable Thomas B. Russell, United States District Judge for the Western District*
of Kentucky, sitting by designation.
NOT RECOMMENDED FOR FULL TEXT PUBLICATION
File Name: 08a0737n.06
Filed: December 3, 2008
Nos. 07-4030
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
HEARTWOOD, et al.,
Plaintiffs-Appellants,
v.
DIRK KEMPTHORNE, et al.,
Defendants-Appellees.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF OHIO
BEFORE: COLE, CLAY, Circuit Judges; RUSSELL, District Judge.*
RUSSELL, District Judge. Heartwood and Kentucky Heartwood (“Heartwood”) appeal
the district court’s order granting summary judgment in favor of the United States Fish and Wildlife
Service (“FWS”) and the United States Forest Service (“Forest Service”). This case concerns three
Biological Opinions issued by the FWS pursuant to Section 7 of the Endangered Species Act, 16
U.S.C. § 1536. If a federal agency action “may affect” an endangered species, the agency is required
to formally consult with the FWS. 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.14(a). At the conclusion
of the consultation process, the FWS issues a Biological Opinion assessing whether the proposed
action is likely to jeopardize the continued existence of the endangered species. 16 U.S.C. §

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1536(b)(3)(A); 50 C.F.R. § 402.14(g)(4). The Biological Opinions at issue analyzed the impact of
the Forest Service’s proposed land and resource management plans for the Jefferson, Pisgah, and
Daniel Boone National Forests, and concluded that the plans were not likely to jeopardize the
continued existence of the Indiana bat, an endangered species. Heartwood filed a complaint in
federal district court, alleging that the Biological Opinions violated the Endangered Species Act, 16
U.S.C. § 1531, et seq., and the Administrative Procedures Act 5 U.S.C. § 701, et seq. The parties
filed cross-motions for summary judgment, resulting in the denial of Heartwood’s motion for
summary judgment, and the granting of the FWS and Forest Service’s motion.
We review the district court’s decision granting summary judgment de novo, applying the
appropriate standard of review to the agency action. Steeltech, Ltd. v. EPA, 273 F.3d 652, 655 (6th
Cir. 2001). We will set aside an agency’s decision only if it is “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with the law.” 5 U.S.C. § 706(2)(A).
After carefully reviewing the record, the applicable law, the parties' briefs and counsels'
arguments, we find that the district court did not err in granting summary judgment in favor of the
FWS and the Forest Service. The district court carefully examined Heartwood’s allegations, the
FWS’s obligations under the Endangered Species Act, and the administrative record. The district
court then correctly found that there is no evidence in the record which would show that the FWS
acted arbitrarily and capriciously or failed to act in accordance with the law in determining that
Forest Service’s proposed actions were not likely to jeopardize the continued existence of the Indiana
bat. Given the district court’s comprehensive analysis, the issuance of a detailed opinion is
unnecessary. We therefore AFFIRM the district court's granting of summary judgment for the
reasons stated in the district court's order.

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